People v. Rudolph

Decision Date07 March 2019
Docket Number108642,109328
Citation170 A.D.3d 1258,95 N.Y.S.3d 629
Parties The PEOPLE of the State of New York, Respondent, v. Whirlee RUDOLPH, Appellant.
CourtNew York Supreme Court — Appellate Division

Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Devine, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.Appeals (1) from a judgment of the County Court of Albany County (Lynch, J.), rendered February 18, 2016, convicting defendant upon his pleas of guilty of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree, and (2) by permission, from an order of said court, entered April 7, 2017, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and set aside the sentence, after a hearing.

In March 2014, defendant was charged by a five-count indictment with, among other things, criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree stemming from a traffic stop that occurred in July 2015 when defendant was pulled over in the City of Albany for having tinted windows. County Court, after a hearing, denied defendant's motion to suppress, among other things, "tangible seized property" and defendant subsequently entered a guilty plea to criminal possession of a controlled substance in the third degree in full satisfaction of the indictment. As a condition of the plea agreement, defendant agreed to waive his right to appeal, both orally and in writing. Defendant was released on bail pending sentencing, but, prior to sentencing, the People moved to vacate defendant's release status due to a new arrest. Subsequently, the parties agreed to a global plea deal wherein defendant would enter a guilty plea on the new charge – criminal possession of a controlled substance in the fourth degree – in exchange for a sentence of two years in prison, plus three years of postrelease supervision, to be served concurrently with an enhanced sentence of 12 years as a result of his previous guilty plea. As a condition of his global plea deal, defendant waived his right to appeal, orally and in writing, from the conviction and sentence, including the enhanced sentence on the prior conviction. Defendant was sentenced accordingly.

Defendant later moved pro se pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and to set aside his sentence based upon ineffective assistance of counsel. County Court subsequently appointed counsel for defendant and a hearing was held, during which defendant's trial counsel, Cheryl Coleman, testified. After the hearing, the court denied defendant's motion. Defendant now appeals from both the judgment of conviction and, by permission, the denial of his CPL article 440 motion.

We turn first to defendant's contentions regarding County Court's denial of his suppression motion. Initially, we note that, despite defendant executing a valid waiver of appeal in connection with his plea to criminal possession of a controlled substance in the third degree (see People v. McDuffie, 89 A.D.3d 1154, 1156, 932 N.Y.S.2d 228 [2011], lv denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ), we are reaching the merits of defendant's argument due to an ambiguous statement made by the court during the plea proceeding regarding his right to appeal from the adverse suppression hearing ruling. As to the merits, the traffic stop was made after Jeffrey Devine, a State Trooper, observed excessively tinted windows on defendant's vehicle and, as such, was justified (see Vehicle and Traffic Law § 375 [12–a ] [b][2]; People v. Banks, 148 A.D.3d 1359, 1360, 50 N.Y.S.3d 583 [2017] ). A "limited seizure of [a] vehicle's occupant must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance, unless circumstances arise which furnish the police with a founded suspicion that criminal activity is afoot" ( People v. Kelly, 37 A.D.3d 866, 867, 829 N.Y.S.2d 259 [2007] [internal quotation marks and citation omitted], lv denied 8 N.Y.3d 986, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007] ; see People v. Banks, 148 A.D.3d at 1360, 50 N.Y.S.3d 583 ). "[G]reat weight is accorded the trial court's determination at a suppression hearing and, absent a basis in the record for finding that the court's resolution of credibility issues was clearly erroneous, its determinations are generally not disturbed" ( People v. Williams, 25 A.D.3d 927, 928, 807 N.Y.S.2d 470 [2006] [internal quotation marks and citations omitted], lv denied 6 N.Y.3d 840, 814 N.Y.S.2d 88, 847 N.E.2d 385 [2006] ; see People v. Mattis, 108 A.D.3d 872, 874, 969 N.Y.S.2d 581 [2013], lvs denied 22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013] ).

Devine testified at the suppression hearing that, after approaching the passenger side of defendant's vehicle, defendant rolled down the window and Devine asked him for his license and registration. Upon receiving defendant's license, Devine noticed that defendant had a Brooklyn address, so he asked defendant where he was going. Defendant responded that he was visiting someone in Albany, but could not tell the officer who the person was or where the person lived. After Devine ran defendant's license, he found that there was an active out-of-state warrant and that defendant was on federal probation. Devine returned to defendant's car and asked him to step out of the vehicle so Devine could interview him further about the warrant and probation. Devine explained that he asked defendant to step out of the car because that was where Devine felt most comfortable and that he was concerned that if defendant was still sitting in the driver side of the car, he could flee the scene, which has happened on numerous occasions. Defendant got out of the car and, in response to questioning by Devine, indicated that the warrant was still outstanding and that he was allowed to be outside of Brooklyn despite his federal probation status. Devine then used his personal cell phone to call defendant's probation officer, who informed Devine that defendant did not have permission to leave the Brooklyn area and requested to speak to defendant.

Devine testified that while defendant was on the phone, he indicated to defendant that he was going to check the tint of the window using his tint meter; defendant agreed to his request by nodding his head. While checking the tint, Devine had to roll down the window and open the door and, when he did, he smelled "an odor of mari[h]uana emanating from the inside of the vehicle." After defendant said that the odor was from hemp used for clothing, Devine conducted a search of defendant's vehicle, starting with the interior, and, when he found nothing there, he proceeded to the trunk where he located a black duffel bag that contained approximately four pounds of marihuana. Devine also located bags containing a white powdery substance that he believed to be cocaine and an "off-white substance with a yellowish tint that tested positive for methamphetamines" inside of a Nike shoe box.

Based on the foregoing, County Court did not err in denying defendant's motion to suppress. Even though Devine did not smell marihuana when he approached the passenger side of the vehicle the first two times, the fact that he did smell marihuana when he approached the driver side, after rolling down the window and opening the door, was enough to establish probable cause to search the vehicle (see People v. Horge, 80 A.D.3d 1074, 1074–1075, 915 N.Y.S.2d 757 [2011] ; People v. Gaines, 57 A.D.3d 1120, 1121, 869 N.Y.S.2d 646 [2008] ). Additionally, despite defendant's contention that County Court should not have considered Devine's testimony "frank, candid and trustworthy" with "the general force and flavor of credibility," this Court gives great weight to the suppression court's credibility findings, and here there is no basis to conclude that the credibility finding was erroneous (see People v. Mattis, 108 A.D.3d at 874, 969 N.Y.S.2d 581 ; People v. Williams, 25 A.D.3d at 927, 807 N.Y.S.2d 470 ). Nor are we persuaded by defendant's assertion that his detention was unlawfully prolonged. Evidence at the hearing established that Devine pulled defendant over at approximately 2:40 p.m. and a tow truck was called for defendant's car at 3:17 p.m., making the stop 37 minutes long. Devine acted within his discretion to run defendant's license, and when he found out about defendant's out-of-state warrant and federal probation, it was reasonable for him to question defendant and attempt to contact defendant's probation officer. Also, Devine's request to check the tint of the window was related to the stop, which led Devine to smell the marihuana. Thus, this detention was "reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance" ( People v. Banks, 148 A.D.3d at 1360, 50 N.Y.S.3d 583 [internal quotation marks and citations omitted] ).

We turn next to defendant's assertion that his enhanced sentence of 12 years is harsh and excessive. Initially, at the time that defendant entered his guilty plea to criminal possession of a controlled substance in the third degree, County Court informed defendant that, if he were to commit a new crime while out on bail pending sentencing, his plea would remain in effect and it would not be bound by the sentencing agreement and instead could impose a sentence up to 12 years plus three years of postrelease supervision.

Given that the court adequately advised defendant of the consequences of violating the plea conditions, defendant's challenge to the...

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