People v. Hightower

• Decision Date: 13 August 2020
• Docket Number: 109714
• Parties: The PEOPLE of the State of New York, Respondent, v. Aaron L. HIGHTOWER, Appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 926
128 N.Y.S.3d 699

The PEOPLE of the State of New York, Respondent,
v.
Aaron L. HIGHTOWER, Appellant.

109714

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

Calendar Date: May 22, 2020
Decided and Entered: August 13, 2020

128 N.Y.S.3d 701

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

186 A.D.3d 927

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered August 9, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the fourth degree, criminal possession of a weapon in the third degree, attempted tampering with physical evidence and obstructing governmental administration in the second degree.

On February 12, 2016, a Warren County deputy sheriff observed a vehicle that appeared to be outside its lane on State Route 9 in the Town of Queensbury, Warren County. The deputy followed the vehicle, but lost it after stopping at a red light. The deputy then contacted the State Police to be on the lookout for the vehicle. Shortly thereafter, the deputy and a state trooper observed the vehicle on Interstate 87 in Warren County and followed it. Defendant was the sole occupant and operator of the vehicle. The trooper observed defendant throw a lit cigarette out of the driver side window – a traffic violation – while driving in Warren County and subsequently stopped the vehicle in the Town of Moreau, Saratoga County. Because the trooper smelled marihuana as he approached, he directed defendant to exit and proceeded to execute a pat-down search of him, which search revealed metal knuckles in defendant's front sweatshirt pocket. At the same time, the trooper's

128 N.Y.S.3d 702

partner searched the vehicle and discovered 1.1 grams of marihuana in the center console. A K–9 officer was then employed to conduct a search of the vehicle, resulting in "hits" on the console and the driver's seat. Defendant was handcuffed and transported to the State Police barracks in Queensbury. During transport, the trooper continued to smell marihuana emanating from defendant. At the barracks, the trooper and deputy conducted a strip search of defendant, which ultimately revealed 9½ grams of marihuana and approximately seven grams of cocaine. Rather than handing over the bag of cocaine, defendant threw it into the air and attempted to swallow it, but was unsuccessful.

Defendant was thereafter charged in a four-count indictment with criminal possession of a controlled substance in the fourth degree, criminal possession of a weapon in the third degree, attempted tampering with physical evidence and obstructing governmental administration in the second degree. Defendant moved to dismiss the indictment on various grounds, including that it was jurisdictionally defective in that the stop occurred in Saratoga County, but the indictment was issued out of Warren

186 A.D.3d 928

County. County Court found, after inspecting the grand jury minutes, that Warren County had jurisdiction under CPL 20.40(4). Defendant also moved, among other things, to suppress the physical evidence obtained from the search of his person and the vehicle, and to specifically dismiss the count of criminal possession of a controlled substance in the fourth degree due to an illegal strip search. After a suppression hearing, County Court denied the motion, finding that there was probable cause to justify the pat search and the search of defendant's vehicle and that the strip search of defendant at the police barracks was warranted.

After a jury trial, defendant was found guilty of all charges. Prior to sentencing, a juror sent a letter and photographs of herself to the deputy, expressing a romantic interest in him. The deputy informed all parties of the letter, and defendant moved to set aside the verdict, claiming that the letter indicated that the juror was not impartial. After a hearing, County Court denied defendant's motion, finding that the juror did not have a preexisting view of the deputy prior to him testifying that prevented her from being fair and impartial. Defendant was thereafter sentenced, as a second felony offender, to prison terms of eight years, followed by three years of postrelease supervision, for his conviction of criminal possession of a controlled substance in the fourth degree, 3½ to 7 years for his conviction of criminal possession of a weapon in the third degree, to run consecutively to the first sentence, and to lesser concurrent terms on the remaining convictions. Defendant appeals.

Defendant contends that County Court erred in denying his motion to suppress the evidence resulting from the search of his person and the vehicle. Specifically, he contends that, although the trooper was within his right to ask for identification and to have him exit the vehicle, the trooper did not have a reasonable belief that a crime had been committed to warrant said searches. Vehicle and Traffic Law § 1220(a) prohibits a person from throwing refuse, trash, garbage or litter upon the highway. "Police may validly stop a vehicle based on probable cause that the driver committed a traffic violation" ( People v. Weishaupt, 118 A.D.3d 1100, 1102, 987 N.Y.S.2d 493 [2014] [citations omitted]; see People v. Issac, 107 A.D.3d 1055, 1057, 968 N.Y.S.2d 631 [2013] ). "[P]robable cause exists for a traffic stop if an officer observes a defendant committing a traffic violation" (

128 N.Y.S.3d 703

People v. Portelli, 116 A.D.3d 1163, 1164, 983 N.Y.S.2d 355 [2014] ). Here, the trooper testified at the suppression hearing that he observed a lit cigarette being thrown from the driver side window of the vehicle. Based upon this observation,

186 A.D.3d 929

the trooper's subsequent stop of the vehicle was lawful (see People v. Horge, 80 A.D.3d 1074, 1074, 915 N.Y.S.2d 757 [2011] ).

"[I]t 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. Rasul, 121 A.D.3d 1413, 1415, 995 N.Y.S.2d 380 [2014] [internal quotation marks, brackets and citations omitted]; see People v. Hines, 172 A.D.3d 1649, 1651, 99 N.Y.S.3d 786 [2019], lv denied 34 N.Y.3d 951, 110 N.Y.S.3d 650, 134 N.E.3d 649 [2019] ; 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] ). The trooper testified at the suppression hearing that he had received training in identifying the odor of marihuana in both its unburnt and burnt form and has 16 years of experience as an officer in detecting its smell.¹ He further recounted that, as he approached the vehicle, he detected a strong odor of marihuana, despite the fact that the windows were rolled up; once the windows were lowered, the smell of marihuana "increased significantly." We find that, under these circumstances, the trooper had reasonable suspicion to search defendant and his vehicle (see People v. Hines, 172 A.D.3d at 1651, 99 N.Y.S.3d 786 ; People v. Williams, 145 A.D.3d at 1190, ...