People v. Potter

• Decision Date: 24 August 2022
• Docket Number: 2020–00282,Ind. No. 766/18
• Citation: 208 A.D.3d 802,173 N.Y.S.3d 339
• Parties: The PEOPLE, etc., respondent, v. Donald POTTER, appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 802
173 N.Y.S.3d 339

The PEOPLE, etc., respondent,
v.
Donald POTTER, appellant.

2020–00282
Ind. No. 766/18

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

Argued—May 3, 2022
August 24, 2022

173 N.Y.S.3d 340

Warren S. Hecht, Forest Hills, NY, for appellant, and appellant pro se.

David M. Hoovler, District Attorney, Goshen, NY (Edward D. Saslaw of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LARA J. GENOVESI, JJ.

DECISION & ORDER

208 A.D.3d 802

Appeal by the defendant from a judgment of the County Court, Orange County (Robert H. Freehill, J.), rendered December 4, 2019, convicting him of burglary in the third degree, grand larceny in the third degree, criminal possession of stolen property in the third degree, and possession of burglar's

208 A.D.3d 803

tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the County Court did not err in denying those branches of his omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials during an encounter on October 20, 2018. According to testimony presented by the People at the suppression hearing, during the early morning hours on October 20, 2018, an off-duty sergeant for the City of Port Jervis Police Department reported seeing a parked vehicle with the rear driver's side door open and no one in the vicinity of the vehicle. Two police officers were dispatched to the location of the vehicle. Upon arrival, they parked their patrol car behind the vehicle, which matched the off-duty sergeant's description of the parked vehicle, and observed that there were three occupants inside it. As the officers approached the vehicle, they smelled the strong odor of burnt marijuana emanating from it. The officer who approached the vehicle on the driver's side observed a partially burnt,

173 N.Y.S.3d 341

hand-rolled cigar in the center console. He asked the occupants of the vehicle what they were doing, and the driver responded, "Smoking marijuana." The other two occupants, including the defendant, who was sitting in the back seat, remained silent. The driver was placed under arrest, and the other two occupants, including the defendant, were directed to exit the...