People v. Dolan

• Decision Date: 25 October 2018
• Docket Number: 109261
• Citation: 86 N.Y.S.3d 306,165 A.D.3d 1499
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian J. DOLAN, Appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1499

86 N.Y.S.3d 306

The PEOPLE of the State of New York, Respondent,

v.Brian J. DOLAN, Appellant.

109261

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 13, 2018

Decided and Entered: October 25, 2018

Rachel Rappazzo, Schenectady, for appellant.

Susan J. Mallery, District Attorney, Schoharie (Michael L. Breen of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered February 1, 2017, convicting defendant upon his plea of guilty of the crime of unlawful manufacture of methamphetamine in the third degree.

On February 7, 2016, a vehicle being operated by defendant was stopped by state troopers for violations of the Vehicle and Traffic Law. Upon approaching the vehicle and speaking to its occupants, the troopers detected the odor of burnt marihuana emanating from inside the vehicle. The troopers thereafter asked for and obtained defendant's consent to search the vehicle, which resulted in the discovery of various items of equipment and precursors used in the manufacture of methamphetamine. As a result, defendant was charged by indictment with criminal possession of precursors of methamphetamine and unlawful manufacture of methamphetamine in the third degree. After County Court denied defendant's motion to suppress the items seized from his vehicle, he pleaded guilty to unlawful manufacture of methamphetamine in the third degree and was sentenced, as a second felony offender, to two years in prison followed by one year of postrelease supervision. He now appeals, solely challenging the denial of his suppression motion.

Defendant does not dispute that the troopers had authority to stop the vehicle based upon, among other things, the failure to signal his intention to turn for the requisite distance before the intersection (see Vehicle and Traffic Law § 1163[b] ; People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383 [2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ; People v. Tandle, 71 A.D.3d 1176, 1177–1178, 898 N.Y.S.2d 597 [2010], lv denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229 [2010] ). As for the ensuing search of the vehicle, it is settled 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. Rasul, 121 A.D.3d 1413, 1415, 995 N.Y.S.2d 380 [2014] [internal quotation marks, brackets and citations omitted]; accord People v. Williams , 145 A.D.3d 1188, 1190, 43 N.Y.S.3d 190 [2016], lv denied 29 N.Y.3d 1002, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ; People v. Francois, 138 A.D.3d 1165, 1166, 30 N.Y.S.3d 349 [2016] ). Here, the troopers involved in the lawful traffic stop testified that they approached the vehicle from opposite sides and, while speaking with defendant and the front-seat passenger through their respective windows, each immediately detected an odor of burnt marihuana emanating from within the vehicle. Contrary to defendant's contention, the record supports the conclusion that the troopers – one of whom is a certified drug recognition expert – possessed the requisite training and experience to identify the distinctive odor of burnt marihuana (see People v. Williams, 145 A.D.3d at 1190, 43 N.Y.S.3d 190 ; People v. Rasul, 121 A.D.3d at 1415, 995 N.Y.S.2d 380 ; People v. Cuffie, 109 A.D.3d at 1201, 972 N.Y.S.2d 383 ). Further, prior to the search, the front-seat passenger admitted to having a marihuana pipe and turned it over to one of the troopers (see People v. Ketteles, 62 A.D.3d 902, 903–904, 879 N.Y.S.2d 208 [2009], lvs denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 [2009]; People v. Feili, 27 A.D.3d 318, 319, 811 N.Y.S.2d 392 [2006], lv denied 6 N.Y.3d 894, 817 N.Y.S.2d 629, 850 N.E.2d 676 [2006] ; cf. People v. McRay, 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] ). In light of the circumstances presented and the observations made by the troopers, probable cause existed to search the vehicle (see People v. Kaid, 163 A.D.3d 1151, 1152, 82 N.Y.S.3d 199 [2018], lv denied 32 N.Y.3d 1005, 86 N.Y.S.3d 763, 111 N.E.3d 1119 [Sept. 20, 2018] ; People v. Williams, 145 A.D.3d at 1190, 43 N.Y.S.3d 190 ; People...