PEOPLE v. OCAMPOS (2026)

Judgment, Supreme Court, Bronx County (Beth Beller, J., at suppression hearing;  Dineen A. Riviezzo, J., at motion to dismiss, plea, and sentencing), rendered November 9, 2022, convicting defendant of criminal possession of a firearm, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.

Defendant validly waived his right to appeal (see People v. Thomas, 34 NY3d 545 [2019], cert denied 589 U.S. 1302 [2020] ).  During the plea colloquy, the court–mistakenly referred to the rights forfeited as “when you plead guilty,” as opposed to “when you waive the right to appeal.”  However, when considered in context, the misstatement did not undermine the validity of the waiver.  In the same sentence, the court referred to the written appeal waiver “that you just executed.”  The remainder of the colloquy accurately explained the separate nature of the appeal waiver (see People v. Thomas, 34 NY3d 545, 558–559 [2019], cert denied 589 U.S. 1302 [2020] ).  Nor did several other claimed deficiencies undermine the court's comprehensive and accurate plea waiver colloquy.  Defendant's valid waiver of appeal forecloses review of his suppression claim (see People v. Yizar, 240 AD3d 416, 417 [1st Dept 2006], lv denied 44 NY3d 985 [2025] ).

As an alternative holding, we find that the court properly denied defendant's suppression claim.  Defendant contends that the testifying officer falsely stated that, prior to the stop, he observed that the windows of defendant's vehicle were unlawfully tinted and its rear license plate was not illuminated.  Defendant describes the officer's testimony as “tailored to nullify constitutional objections” and thus unworthy of belief (People v. Carmona, 233 A.D.2d 142, 144 [1st Dept 1996] ).  However, the hearing court credited the officer's testimony.  Such determination is “entitled to great deference on appeal” (People v. Lee, 143 AD3d 626, 627 [1st Dept 2016], affd 29 NY3d 1119 [2017] ) and “should not be set aside unless clearly unsupported by the record” (People v. Diaz, 68 AD3d 642, 644 [1st Dept 2009], affd 15 NY3d 764 [2010] ).

Further, the officer's questions regarding whether defendant “had anything illegal on him or in the [vehicle]” and his request for consent to search it, were supported by founded suspicion of criminality (see People v. Mercado, 120 AD3d 441, 442–443 [1st Dept 2014], affd 25 NY3d 936 [2015] ).  The officer smelled a “moderate to faint odor” of marijuana emanating from the passenger compartment of the car.  Moreover, defendant admitted to a “felony level” suspension of his license, was driving a car not registered to him, and possessed no form of identification.  As to the odor of marijuana, “the operative date for determining whether Penal Law § 225.03(3) (a provision of the Marijuana Regulation and Taxation Act) applies is when the search was performed, not when the suppression hearing was held” (People v. Fasoli, 242 AD3d 900, 902 [2nd Dept 2025], lv denied 44 NY3d 1051 [2025] ).  Here, the search was performed prior to the enactment of the statute and thus falls outside its orbit.

Defendant's argument that the search exceeded its permissible scope lacks merit.  Under the automobile exception, “police may search a vehicle without a warrant when they have probable cause to believe that contraband will be found there, so long as there is a nexus between the arrest and the probable cause to search” (People v. Kuforiji, 209 AD3d 499, 499 [1st Dept 2022], lv denied 39 NY3d 986 [2022], quoting People v. Galak, 81 N.Y.2d 463, 467 [1993] [internal quotation marks omitted] ).  “ ‘The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ ”  (People v. Gomez, 5 NY3d 416, 419 [2025], quoting Florida v. Jimeno, 500 U.S. 248, 251 [1991] ).  Under either of these standards, the scope of the search was not excessive.

The initial predicate for the search entitled the officer to inspect the area around the console.  During that inspection, the officer discovered loose paneling and a hidden compartment beneath the console of the Honda Pilot defendant was driving.  Based on his training and experience with aftermarket hidden compartments, commonly known as “traps,” the officer recognized the compartment as consistent with drug trafficking activity.  In this context, the officer also knew that Honda Pilots contain a large void beneath the center console cup holder area that is commonly used in mid-to-high level drug trafficking.  The officer thus had probable cause to continue the search.  The balance of the officer's conduct based on his ensuing observations, including a more invasive search after the vehicle was brought to the precinct, was also justified.

Defendant has standing to bring his Second Amendment facial challenge to his conviction of criminal possession of a firearm based on New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022] ) even though he never applied for a gun license.  The claim also survives his valid waiver of the right to appeal (see People v. Johnson, — NY3d —, 2025 N.Y. Slip Op 06528 [2025], *2).  However, the argument fails on the merits.  Defendant posits that Bruen invalidated New York State's gun licensing regime in its entirety.  As the Court of Appeals and other New York courts have held innumerable times, Bruen invalidated only the “proper cause” requirement in New York's gun licensing scheme and left the balance of the State's gun licensing regime undisturbed (see id. at *2–3).