The People of the State of New York, Respondent, v. Javier Mena, Defendant–Appellant. (2011)

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Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O. at suppression hearing;  Renee A. White, J. at plea and sentencing), rendered July 8, 2008, convicting defendant of attempted criminal possession of a controlled substance in the third degree and attempted criminal possession of a weapon in the second degree and sentencing him to an aggregate term of 21/212 years, unanimously affirmed.

Initially, we note that defendant's present claim is unpreserved.   The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations.

At the suppression hearing, the police officers testified that during a lawful car stop, they detected the odor of marijuana emanating from the vehicle;  moreover, the codefendant admitted to police officers that he and defendant had been smoking marijuana earlier in the day in the car on the way to New York from Atlantic City. Accordingly, the police clearly had probable cause to search the vehicle under the automobile exception, and this included a search of the trunk (see United States v. Ross, 456 U.S. 798, 825 [1982];  People v. Langen, 60 N.Y.2d 170, 180–182 [1983], cert denied 465 U.S. 1028 [1984];  People v. Hughes, 68 AD3d 894 [2009], lv denied 14 NY3d 841 [2010] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK