PEOPLE v. BADGER (2008)

Judgment, Supreme Court, New York County (James A. Yates, J. at hearing;  Edward J. McLaughlin, J. at plea and sentence), rendered October 10, 2006, as amended October 17, 2006, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender whose prior conviction was a violent felony, to a term of 3 1/212 years, unanimously affirmed.

 The court properly denied defendant's motion to suppress drugs recovered from his person.  An experienced narcotics officer saw defendant engage in what reasonably appeared to be a drug transaction, and then drive away.  Acting upon a description of defendant and his vehicle transmitted by radio, a field team stopped defendant's vehicle and apprehended him.  The radio communication from the observing officer was, itself, a sufficient basis for a lawful arrest (see People v. Ketcham, 93 N.Y.2d 416, 690 N.Y.S.2d 874, 712 N.E.2d 1238 [1999];  People v. Brown, 304 A.D.2d 321, 758 N.Y.S.2d 24 [2003], lv. denied 100 N.Y.2d 536, 763 N.Y.S.2d 1, 793 N.E.2d 415 [2003] ).  In addition, one of the apprehending officers detected the distinctive odor of marijuana emanating from the vehicle (see People v. Reisman, 29 N.Y.2d 278, 284, 327 N.Y.S.2d 342, 277 N.E.2d 396 [1971], cert. denied 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582 [1972] ), and this independently established probable cause to search the automobile and its occupants (see People v. Chestnut, 43 A.D.2d 260, 351 N.Y.S.2d 26 [1974], affd. 36 N.Y.2d 971, 373 N.Y.S.2d 564, 335 N.E.2d 865 [1975] ).  The hearing court properly credited an officer's testimony that he recognized the smell of marijuana.

We perceive no basis for reducing the sentence.