People v. Clanton

Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered May 7, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from is affirmed.

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]). The charges arose from an incident in which police officers detected the odor of marihuana emanating from a vehicle they had stopped for a traffic violation. Defendant, a passenger in that vehicle, attempted to flee from the scene upon exiting the vehicle but was detained by the officers. In response to one officer’s

Defendant contends that the court should have rejected the officer’s testimony offered in support of the decision of the police to search the vehicle and its occupants inasmuch as there was no concrete evidence of marihuana possession presented at the suppression hearing. We reject that contention. It is well established that the odor of marihuana emanating from a vehicle, “ ‘when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants’ ” (People v Ricks, 145 AD3d 1610 , 1611 [2016]; see People v Chestnut, 43 AD2d 260 , 261-262 [1974], affd 36 NY2d 971 [1975]; People v Grimes, 133 AD3d 1201 , 1202 [2015]; People v Cuffie, 109 AD3d 1200 , 1201 [2013], lv denied 22 NY3d 1087 [2014]). Here, the officer testified that, as soon as the front passenger-side window was rolled down, he “immediately observed the strong odor of burnt mari[h]uana coming from within the vehicle” and contemporaneously saw “what appeared to [him] to be ashes all over [defendant]’s pants, in his lap” (see generally People v Ponzo, 111 AD3d 1347 , 1348 [2013]; People v Guido, 175 AD2d 364 , 365 [1991], lv denied 78 NY2d 1076 [1991]). The officer further testified that he also observed “numerous small remnants of mari[h]uana blunts” in the plastic ashtray in the passenger-side door (see generally People v Semanek, 30 AD3d 547 , 547-548 [2006]). Significantly, the officer also testified that he had received “training in the Academy” regarding the “physical characteristics and odor” of marihuana, and that he had encountered the smell of burnt marihuana “thousands of times” in the field. “It is well settled that great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous” (People v Layou, 134 AD3d 1510 , 1511 [2015], lv denied 27 NY3d 1070 [2016], denied reconsideration 28 NY3d 932 [2016]). Here, we see “no basis to disturb the court’s credibility assessments of the officer[ ] inasmuch as [n]othing about the officer[’s] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self contradictory” (People v Walker, 128 AD3d 1499 , 1500 [2015], lv denied 26 NY3d 936 [2015] [internal quotation marks omitted]).

We agree with defendant, however, that the court should

In spite of the unlawful pre-Miranda custodial interrogation of defendant, we nevertheless conclude that the court was not required to suppress the firearm. Indeed, the court properly determined that “[a] cursory search of [d]efendant’s person would have resulted in finding the subject gun regardless of any admission by [defendant that a gun was on his person.” Under the doctrine of inevitable discovery, evidence that would otherwise have been suppressed pursuant to the fruit of the poisonous tree doctrine will be deemed admissible “ ‘where the normal course of police investigation would, in any case, even absent the illicit conduct, have inevitably led to such evidence’ ”

Although defendant’s statement admitting to the possession of the firearm should have been suppressed, we conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant’s guilty plea (see Beckwith, 303 AD2d at 595 ). “[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant’s decision, unless at the time of the plea he states or reveals his reason for pleading guilty” (People v Grant, 45 NY2d 366 , 379-380 [1978]). “The Grant doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no ‘reasonable possibility that the error contributed to the plea’ ” (People v Wells, 21 NY3d 716 , 719 [2013]). In our view, because the firearm was not suppressed and would have been admissible at trial, there is no reasonable possibility that the court’s error in failing to suppress defendant’s statement admitting possession of the firearm contributed to his decision to plead guilty (cf. Grant, 45 NY2d at 379-380 ).

All concur except Lindley and Troutman, JJ., who dissent and vote to reverse in accordance with the following memorandum.

(dissenting). We respectfully dissent. We agree with the majority’s conclusion that County

Present — Carni, J.P., Lindley, DeJoseph, Troutman and Scudder, JJ.