People v. Smith

• Decision Date: 08 August 2012
• Parties: The PEOPLE, etc., respondent, v. Gary V. SMITH, appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 590

949 N.Y.S.2d 474

2012 N.Y. Slip Op. 05934

The PEOPLE, etc., respondent,

v.Gary V. SMITH, appellant.

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

Aug. 8, 2012.

Joel B. Rudin, New York, N.Y. (Terri S. Rosenblatt of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.

REINALDO E. RIVERA, J.P., ARIEL E. BELEN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit, J.), rendered July 12, 2011, convicting him of criminal possession of a weapon in the second degree, possession of an alcoholic beverage in a motor vehicle, failing to give the appropriate turn signal, and operating a motor vehicle with side windows composed of or covered by material with light transmittance of less than 70 percent, upon a jury verdict, and imposing sentence. The appeal brings up for review an order of the same court entered November 16, 2010, which, after a hearing, denied that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a weapon in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, and the order entered November 16, 2010, is modified accordingly.

At the suppression hearing, a police officer testified that while on patrol on the evening of December 12, 2009, he observed the defendant driving a vehicle with dark tinted windows and failing to signal when turning right. Upon stopping the defendant, the police officer went to the driver's side of the defendant's vehicle, requested his license and registration (hereinafter the documents), looked into the car, and saw an open beer bottle, but did not smell any odor of marijuana or see any smoke emanating from the car. The officer waited by the car until the defendant produced the documents, but did not smell any marijuana odor. While standing by the car, the officer briefly looked at the documents, then returned to his patrol car to verify the documents. After determining that the documents were in order, the officer returned to the defendant's vehicle, and advised the defendant that he would be conducting a field sobriety test. However, this test was never conducted.

The officer further testified that, as the defendant exited the vehicle, “I had a strong odor of marijuana coming off his person ... [and] he continued walking to the passenger rear side where ... he spit towards a bush.” After directing the defendant to open his mouth, the officer “observed what appeared to be marijuana pieces inside the cracks of [the defendant's] teeth.” At this point the officer's partner arrived, the defendant was handcuffedand placed in the back of the police vehicle, and the two officers spent “a good 10 to 15 minutes” searching the bush area “to locate what [the defendant] had spit into the bush.” No marijuana was discovered in the bushes or on the defendant's person. The officer further admitted that even though the defendant had been placed in handcuffs, he was “probably not” going to arrest the defendant “because I did not have other evidence for the marijuana. I couldn't find the marijuana.” Nevertheless, the officer then did an inventory search of the defendant's car. The officer described this search as follows:

“I searched under the seat, glove box, nothing of any illegal nature. And then I went to the armrest, the center console where I located a green bag which I had opened up and found another pill bottle ... While I was doing that, the bottom of the interior portion of the center console was extremely loose. I removed the contents. I lifted up the base of the interior where I observed that bandana with the red markings ... I removed the bandana, placed it on to the seat, I unfolded it and I observed that there was a semiautomatic handgun [which had been wrapped in the bandana].”

The officer stated that he discovered the gun at approximately 9:40 PM, or 40 minutes after the initial stop of the defendant's vehicle. The Co...