PEOPLE v. HARRINGTON (2006)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).   Defendant contends that County Court erred in refusing to suppress the drugs found pursuant to the allegedly illegal search of his vehicle, i.e., six “eight balls” of cocaine as well as 16 “dime balls” of cocaine found inside a water bottle in a grocery bag located in the passenger compartment of his vehicle.   We reject defendant's contention.   The record of the suppression hearing establishes that a police officer stopped the vehicle driven by defendant because numerous air fresheners were obstructing defendant's view of the road.   As the officer approached the vehicle, he detected the strong odor of marihuana emanating from the vehicle, and he observed marihuana seeds and stems, and a partially smoked marihuana cigarette in the ashtray of the vehicle.   Defendant was removed from his vehicle and placed in the police vehicle, and the officer found the cocaine upon searching the vehicle.  “The distinctive marihuana odor and presence of a [partial] marihuana cigarette in plain view clearly authorized the [officer] to direct defendant out of the [vehicle] and provided probable cause to place him under arrest” (People v. Terrero, 139 A.D.2d 830, 831, 527 N.Y.S.2d 135).   Although defendant was not placed under arrest at the time of the search, we nevertheless conclude that the officer had probable cause to search the vehicle and its contents when he detected what he “considered to be the distinctive odor of marihuana smoke” and observed the marihuana in the vehicle (People v. Chestnut, 43 A.D.2d 260, 261, 351 N.Y.S.2d 26, affd. 36 N.Y.2d 971, 373 N.Y.S.2d 564, 335 N.E.2d 865;  see People v. Cruz, 7 A.D.3d 335, 337, 777 N.Y.S.2d 66, lv. denied 3 N.Y.3d 671, 672, 784 N.Y.S.2d 10, 11, 817 N.E.2d 828, 829;  see also People v. Figueroa, 6 A.D.3d 720, 722, 776 N.Y.S.2d 574, lv. dismissed 3 N.Y.3d 640, 782 N.Y.S.2d 411, 816 N.E.2d 201;  People v. Guido, 175 A.D.2d 364, 572 N.Y.S.2d 96, lv. denied 78 N.Y.2d 1076, 577 N.Y.S.2d 239, 583 N.E.2d 951).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: