People v. Rodriguez-Rivera

• Decision Date: 11 March 2022
• Docket Number: 1083,KA 19-00799
• Citation: 203 A.D.3d 1624,164 N.Y.S.3d 745
• Parties: The PEOPLE of the State of New York, Respondent, v. Josue RODRIGUEZ-RIVERA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1624
164 N.Y.S.3d 745

The PEOPLE of the State of New York, Respondent,
v.
Josue RODRIGUEZ-RIVERA, Defendant-Appellant.

1083
KA 19-00799

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

Entered: March 11, 2022

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and unlawful possession of marihuana (former § 221.05), defendant contends that Supreme Court erred in refusing to suppress a handgun and marihuana seized from his vehicle because the police did not have probable cause to search the vehicle. We reject that contention. The record establishes, and defendant does not dispute, that the arresting officer was entitled to stop defendant's vehicle after he observed defendant violate a provision of the Vehicle and Traffic Law (see People v. Ricks , 145 A.D.3d 1610, 1610-1611, 45 N.Y.S.3d 738 [4th Dept. 2016], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017] ; see also Vehicle and Traffic Law § 1163 [a] ; see generally People v. Robinson , 97 N.Y.2d 341, 349-350, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). We also conclude that, following the traffic stop, the officer had probable cause to search the vehicle after he detected—based on his training and experience—the " ‘odor of marihuana emanating from [the inside of the] vehicle’ " ( Ricks , 145 A.D.3d at 1611, 45 N.Y.S.3d 738 ; see People v. Clanton , 151 A.D.3d 1576, 1577, 57 N.Y.S.3d 775 [4th Dept. 2017] ; People v. Cuffie , 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ). Further, we note that defendant spontaneously admitted to the officer that he had been smoking marihuana and that there was marihuana located inside the vehicle (see People v. Milerson , 51 N.Y.2d 919, 920-921, 434 N.Y.S.2d 980, 415 N.E.2d 968 [1980] ; Cuffie , 109 A.D.3d at 1201, 972 N.Y.S.2d 383 ). We reject defendant's contention that probable cause came to an end once the police discovered a single jar of marihuana; the police had reason to believe that there was additional marihuana to be found inside (see generally Milerson , 51 N.Y.2d at 920-921, 434 N.Y.S.2d 980, 415 N.E.2d 968 ). While lawfully searching for the additional marihuana, the police recovered the handgun inside the vehicle (see generally People v. Brown , 96 N.Y.2d 80, 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ).

We also reject defendant's contention that the court erred in refusing to suppress statements he made to the police. Defendant's statement about the odor in his vehicle, which he made immediately after he was pulled over by the police, was a "response[ ] to threshold inquiries by the police ... intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime, and th[at] statement[ ] thus w[as] not subject to suppression" (

164 N.Y.S.3d 748

People v. Mitchell , 132 A.D.3d 1413, 1414, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] [internal quotation marks omitted]; see generally People v. Huffman , 41 N.Y.2d 29, 34, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). Defendant's statement admitting that there was marihuana inside the vehicle was not subject to suppression because it was "spontaneous and not the result of inducement, provocation, encouragement or acquiescence" ( People v. Bumpars , 178 A.D.3d 1379, 1380, 116 N.Y.S.3d 838 [4th Dept. 2019], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 749, 165 N.E.3d 675 [2021] [internal quotation marks omitted]; see People v. Rivers , 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982], rearg denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343 [1982] ; People v. Maerling , 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 385 N.E.2d 1245 [1978] ). Even assuming, arguendo, that defendant's subsequent statement informing the police that the marihuana was under the driver's seat should have been suppressed because it was made in response to a question "reasonably likely to elicit an incriminating response" ( Rhode Island v. Innis , 446...