Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Kenneth S. VIRGES, Defendant–Appellant.
Anthony J. Lana, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
Anthony J. Lana, Buffalo, for Defendant–Appellant.Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and criminal possession of marihuana in the fifth degree (§ 221.10[2] ). County Court properly denied defendant's motion to suppress the evidence seized from his person and vehicle. The police officer had an “objective, credible reason” for approaching defendant's parked vehicle and requesting information based on a tip provided by an anonymous informant, who reported that a man was sitting in a gray car smoking marihuana at a certain address ( People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907;see People v. Boler, 106 A.D.3d 1119, 1121, 964 N.Y.S.2d 688). Defendant's vehicle matched that description and was parked at that address. When the police officer smelled marihuana, he had probable cause to search defendant and the vehicle for contraband ( see People v. Robinson, 103 A.D.3d 421, 421–422, 959 N.Y.S.2d 188,lv. denied20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537;People v. Contant, 90 A.D.3d 779, 780, 935 N.Y.S.2d 35,lv. denied18 N.Y.3d 956, 944 N.Y.S.2d 485, 967 N.E.2d 710;People v. Black, 59 A.D.3d 1050, 1051, 872 N.Y.S.2d 791,lv. denied12 N.Y.3d 851, 881 N.Y.S.2d 663, 909 N.E.2d 586;see generally Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485;People v. Blasich, 73 N.Y.2d 673, 678, 543 N.Y.S.2d 40, 541 N.E.2d 40).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50(5).