People v. Smith
| Decision Date | 03 March 2016 |
| Citation | 26 N.Y.S.3d 521,137 A.D.3d 442 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Rashawn SMITH, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
137 A.D.3d 442
26 N.Y.S.3d 521
The PEOPLE of the State of New York, Respondent,
v.
Rashawn SMITH, Defendant–Appellant.
Supreme Court, Appellate Division, First Department, New York.
March 3, 2016.
Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
TOM, J.P., SAXE, RICHTER, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J. at suppression hearing; Laura A. Ward, J. at plea and sentencing), rendered August 27, 2012, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of six months, concurrent with five years' probation, unanimously affirmed.
Initially, we find that the record does not establish a valid waiver of defendant's right to appeal. However, we find that the court properly denied defendant's suppression motion.
Defendant asserts that the officers' initial contact with defendant constituted at least a common-law inquiry, and that it was not supported by the requisite founded suspicion of criminality. Defendant's general arguments on probable cause failed to preserve this issue (see People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 [1976] ), and the court did not "expressly decide[ ]" (CPL 470.05[2] ) it (see People v. Turriago, 90 N.Y.2d 77, 83–84, 659 N.Y.S.2d 183, 681 N.E.2d 350 [1997] ). We decline to review this claim in the interest of justice.
As an alternative holding, we reject it on the merits. Defendant was smoking what appeared to an officer, based on his experience and training, to be a cigar that had been modified for the purpose of smoking marijuana. This provided, at a minimum, a founded suspicion of criminality justifying a common-law inquiry (see People v. Brown, 308 A.D.2d 398, 764 N.Y.S.2d 430 [1st Dept.2003], lv. denied 1 N.Y.3d 595,...
To continue reading
Request your trial
-
People v. Davis
...discovery of marihuana in Franks' possession gave rise to a founded suspicion that criminality was afoot (see People v. Smith, 137 A.D.3d 442, 442–443, 26 N.Y.S.3d 521 [2016], lv. denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ; People v. Brown, 308 A.D.2d 398, 398, 764 N.Y.S.......
-
Dudley v. City of N.Y.
... ... definition of membership as "the state of belonging to or being a part of a group or an organizationthe state of being a memberall the people or things that belong to or are part of an organization or a group." (Id. ). The Court also observed that had the Legislature intended that the ... ...
- Jones v. N.Y.C. Transit Auth.
-
People v. Estevez
...cash from his sock, locations that were still within the scope of an ordinary search incident to arrest (see People v. Smith, 137 A.D.3d 442, 443, 26 N.Y.S.3d 521 [1st Dept.2016], lv. denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ).We reject defendant's challenges to the suff......