People v. Jones

• Decision Date: 07 January 2021
• Docket Number: 109885
• Citation: 190 A.D.3d 1013,139 N.Y.S.3d 421
• Parties: The PEOPLE of the State of New York, Respondent, v. Massi JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1013
139 N.Y.S.3d 421

The PEOPLE of the State of New York, Respondent,
v.
Massi JONES, Appellant.

109885

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

Calendar Date: November 20, 2020
Decided and Entered: January 7, 2021

Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

139 N.Y.S.3d 422

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered October 3, 2017, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

On January 6, 2017, State Trooper Clayton Howell was on patrol duty on the New York State Thruway when he received an alert to be on the lookout for a gray Kia bearing a certain license number. Thereafter, Howell observed the vehicle and began following it when he noticed its rear license plate was partially obscured by the license plate bracket. Believing this obstruction to be a violation of the Vehicle and Traffic Law, Howell initiated a traffic stop of the vehicle and, as he approached the driver side window, he detected the odor of marihuana. Howell radioed for assistance and, upon the arrival of other state troopers, Howell conducted a search of the vehicle and discovered a plastic bag containing a green leafy substance that field-tested positive for marihuana. During a subsequent search of defendant's person, Howell found a plastic bag pinned to the inside of defendant's pants containing a substance later determined to be 74 grams of crack cocaine. Defendant was thereafter charged by indictment with two counts of criminal possession of a controlled substance in the third degree. Defendant moved to suppress, among other things, the physical evidence obtained from the vehicle and his person. Following a suppression hearing, County Court denied defendant's motion to suppress the physical evidence.

Defendant thereafter pleaded guilty to attempted criminal possession of a controlled substance in the third degree. As a condition of the plea agreement, defendant waived his right to appeal, but expressly reserved his right to appeal from the adverse suppression decision under CPL 710.70(2). Defendant was sentenced, as a second felony offender, to a prison term of five years, followed by three years of postrelease supervision, consistent with the terms of the plea agreement. Defendant appeals.

In denying defendant's suppression motion, County Court found the initial approach and the stop of defendant's vehicle to be lawful. The stop of a vehicle by law enforcement "is a seizure implicating constitutional limitations" and, as such, is only permitted when the stop is "based on probable cause that a driver has committed a traffic violation" ( People v. Hinshaw, 35 N.Y.3d 427, 430, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020] [internal quotation marks and citations omitted] ). Probable cause exists for an officer to effect a traffic stop where the officer observes the traffic violation (see People v. Cummings, 157 A.D.3d 982, 983, 69 N.Y.S.3d 394 [2018], lv denied 31 N.Y.3d 982, 77 N.Y.S.3d 660, 102 N.E.3d 437 [2018] ; People v. Rasul, 121 A.D.3d 1413, 1415, 995 N.Y.S.2d 380 [2014] ). This is true even if "the officer's primary motivation to stop the vehicle may have been other than the traffic violation" ( People v. Hinshaw, 35 N.Y.3d at 430, 132 N.Y.S.3d 90, 156 N.E.3d 812 ; see People v. Price, 186 A.D.3d 903, 904, 128 N.Y.S.3d 358 [2020] ).

Vehicle and Traffic Law § 402(1)(b) provides, in pertinent part, that number plates "shall not be covered by glass or any plastic material, and shall not be knowingly covered or coated with any artificial or synthetic material or substance that conceals or obscures such number plates ... and the view of such number plates shall not be obstructed by any part of the vehicle or by anything carried thereon." Howell testified that while he was

139 N.Y.S.3d 423

driving behind the vehicle, he observed that the rear license plate was partially covered by a license plate bracket in violation of Vehicle and Traffic Law § 402(1). He further testified that the bracket covered about an inch to an inch and a half of the bottom portion of the license plate, covering the words "Empire State" and the area where inspection stickers or commercial vehicle information would be. Howell's uncontradicted testimony that he observed defendant driving with a license plate partially obstructed provided probable cause for his subsequent stop of the vehicle, which was lawful (see People v. Newman, 96 A.D.3d 34, 40, 942 N.Y.S.2d 93 [2012], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012], ...