PEOPLE v. KUFORIJI (2022)

Judgment, Supreme Court, New York County (James M. Burke, J. at hearing;  Arlene D. Goldberg, J. at jury trial and sentencing), rendered June 1, 2017, convicting defendant of criminal possession of a weapon in the second degree and criminal possession of a forged instrument in the second degree (two counts), and sentencing him to an aggregate term of 31/212 years, unanimously affirmed.

The hearing court properly denied defendant's suppression motion.  The evidence supported the court's finding that there was probable cause to believe that contraband would be found in defendant's vehicle.  Under the automobile exception, police may search a vehicle without a warrant when they have “probable cause to believe that evidence or contraband will be found there” so long as there is “a nexus between the arrest and the probable cause to search” (People v. Galak, 81 N.Y.2d 463, 467, 600 N.Y.S.2d 185, 616 N.E.2d 842 [1993];  see People v. McCray, 195 A.D.3d 555, 556, 149 N.Y.S.3d 81 [1st Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 428, 175 N.E.3d 453 [2021]).  When an officer pulled over defendant's car and directed him to roll down his windows, the officer noticed a strong smell of marijuana coming from the vehicle.  Defendant acknowledged that marijuana may have been recently smoked in the car.  The officer then observed what appeared to be the cylinder of a revolver in the cup holder, so he told defendant to step out of the car.  When the officer examined the object, it turned out to be a marijuana grinder containing marijuana residue.  The strong odor of marijuana provided probable cause to search the interior of the vehicle, and the search of the cup holder, followed by the closed center console, did not exceed the proper scope of a search under these circumstances (see People v. Singleton, 139 A.D.3d 208, 215, 29 N.Y.S.3d 358 [1st Dept. 2016]).  Accordingly, neither the otherwise unchallenged search warrant later obtained to search the glove compartment and trunk, nor defendant's subsequent statement admitting to the possession of a pistol in the glove compartment was the fruit of any unlawful police conduct.

Although Penal Law § 222.05(3) states that in “any criminal proceeding,” including suppression hearings, no finding of probable cause shall be based solely on evidence of the odor of cannabis, that statute does not apply retroactively (see People v. Pastrana, 205 A.D.3d 461, 463, 168 N.Y.S.3d 53 [1st Dept. 2022], lv granted 38 N.Y.3d 1135, 172 N.Y.S.3d 864, 193 N.E.3d 529 [2022]).  Nor does a pending direct appeal constitute a “criminal proceeding” to which this statute applies (see People v. Fabien, 206 A.D.3d 436, 437, 169 N.Y.S.3d 310 [1st Dept. 2022]).

Defendant's claim of ineffective assistance of counsel, based on his trial counsel's failure to move to reopen the suppression hearing based on trial testimony, is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982]).  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of this claim may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown that counsel's failure to move to reopen the hearing was objectively unreasonable, that such a motion would have been granted, or that a reopened hearing was reasonably likely to have resulted in suppression of any evidence (see People v. Carver, 27 N.Y.3d 418, 420–421, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016];  People v. Smickle, 201 A.D.3d 525, 526, 160 N.Y.S.3d 38 [1st Dept. 2022], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 443, 185 N.E.3d 964 [2022]).