Opinion
1039 KA 15-01922.
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Kemar WALLACE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of marihuana in the first degree ( Penal Law § 221.30 ) defendant contends that County Court erred in refusing to suppress the subject marihuana and his statements to police. Even assuming, arguendo, that the court's description of the plea agreement did not amount to a sentencing commitment and thus that defendant's purported waiver of the right to appeal is unenforceable for lack of consideration (see People v. Mitchell, 147 A.D.3d 1361, 1362, 46 N.Y.S.3d 749 ; People v. Crump, 107 A.D.3d 1046, 1047, 966 N.Y.S.2d 282, lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 ; cf. People v. Deprosperis, 132 A.D.3d 692, 693, 17 N.Y.S.3d 315, lv. denied 26 N.Y.3d 1108, 26 N.Y.S.3d 767, 47 N.E.3d 97 ), we nevertheless affirm the judgment.
The police officer who stopped the vehicle in which defendant was a passenger was entitled to do so upon observing that the vehicle was traveling with its taillights off at night, in violation of the Vehicle and Traffic Law (see § 375[2][a][3] ), even if the officer's primary motivation may have been to investigate some other matter (see People v. Robinson, 97 N.Y.2d 341, 348–349, 741 N.Y.S.2d 147, 767 N.E.2d 638 ; People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383, lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 ; People v. Donaldson, 35 A.D.3d 1242, 1242–1243, 826 N.Y.S.2d 540, lv. denied 8 N.Y.3d 984, 838 N.Y.S.2d 487, 869 N.E.2d 663 ). There is no basis to disturb the court's determination to credit the officer's testimony that the vehicle's taillights were off (see People v. Frazier, 52 A.D.3d 1317, 1317, 860 N.Y.S.2d 367, lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 ; People v. Richardson, 27 A.D.3d 1168, 1169, 810 N.Y.S.2d 759 ; see generally People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 ). Defendant, as a mere passenger in the vehicle, failed to establish standing to challenge the ensuing search of the vehicle that resulted in the discovery of the marihuana (see People v. Rosario, 64 A.D.3d 1217, 1218, 881 N.Y.S.2d 788, lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 ; People v. Robinson, 38 A.D.3d 572, 573, 832 N.Y.S.2d 585 ). Contrary to defendant's contention, he did not have automatic standing inasmuch as the People's theory of possession was not based on the statutory automobile presumption (see Robinson, 38 A.D.3d at 573, 832 N.Y.S.2d 585 ; cf. Penal Law § 220.25[1] ; People v. Millan, 69 N.Y.2d 514, 518–519, 516 N.Y.S.2d 168, 508 N.E.2d 903 ), which does not apply to marihuana offenses (see People v. Dan, 55 A.D.3d 1042, 1043–1044, 866 N.Y.S.2d 382, lv. denied 12 N.Y.3d 757, 876 N.Y.S.2d 708, 904 N.E.2d 845 ; People v. Gabbidon, 40 A.D.3d 776, 777, 836 N.Y.S.2d 221 ).
Inasmuch as defendant has not established that the stop or search was unlawful, his statements are not subject to suppression as the fruit of illegal police conduct (see People v. Feliciano, 140 A.D.3d 1776, 1777, 32 N.Y.S.3d 435 lv. denied 28 N.Y.3d 1027, 45 N.Y.S.3d 379, 68 N.E.3d 108 ; People v. White, 128 A.D.3d 1457, 1460, 8 N.Y.S.3d 788, lv. denied 26 N.Y.3d 1012, 20 N.Y.S.3d 553, 42 N.E.3d 223 ; cf. People v. Mobley, 120 A.D.3d 916, 919, 991 N.Y.S.2d 193 ). Furthermore, the statements that he made during the traffic stop were not obtained in violation of his Miranda rights because he "was not in custody for Miranda purposes" at that time ( People v. Feili, 27 A.D.3d 318, 319, 811 N.Y.S.2d 392, lv. denied 6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676 ; see People v. Bennett, 70 N.Y.2d 891, 893–894, 524 N.Y.S.2d 378, 519 N.E.2d 289 ; People v. Shelton, 111 A.D.3d 1334, 1336–1337, 974 N.Y.S.2d 224, lv. denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 ). To the extent that defendant challenges the validity of his Miranda waiver with respect to his later statements at the police station, we conclude that he implicitly waived his rights by agreeing to speak to an investigator after he had received Miranda warnings from the arresting officer and confirmed that he understood his rights (see People v. Davis, 55 N.Y.2d 731, 733, 447 N.Y.S.2d 149, 431 N.E.2d 634 ; People v. Harris, 129 A.D.3d 1522, 1523, 11 N.Y.S.3d 359, lv. denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 ; see also People v. Nunez, 176 A.D.2d 70, 72, 579 N.Y.S.2d 959, affd. 80 N.Y.2d 858, 587 N.Y.S.2d 899, 600 N.E.2d 626 ).
Finally, we note that the certificate of conviction incorrectly recites that criminal possession of marihuana in the first degree is a class E felony, and it must therefore be amended to reflect that defendant was convicted of a class C felony (see Penal Law § 221.30 ; People v. Young, 74 A.D.3d 1864, 1865, 901 N.Y.S.2d 556, lv. denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.