PEOPLE v. SUTHERLAND (2007)

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered September 16, 2005, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The resolution of issues of credibility made by a hearing court are entitled to great deference on appeal, and will not be disturbed unless they are manifestly erroneous (see People v. Collier, 35 A.D.3d 628, 826 N.Y.S.2d 894;  People v. Ortiz, 31 A.D.3d 580, 817 N.Y.S.2d 671).   Contrary to the defendant's contention, the record in this case amply supports the hearing court's determination to credit the police testimony, as well as the court's factual findings that the vehicle in which the defendant was riding was lawfully stopped for a traffic infraction (see People v. Ellis, 62 N.Y.2d 393, 477 N.Y.S.2d 106, 465 N.E.2d 826;  People v. Phillips, 285 A.D.2d 477, 727 N.Y.S.2d 637;  People v. Alcide, 252 A.D.2d 591, 676 N.Y.S.2d 216).   Furthermore, the removal of the defendant from the vehicle in order to conduct a protective pat-down was warranted by the smell of marijuana emanating from the vehicle, the defendant's known status as a parolee, and the evasive, furtive, and threatening conduct in which he engaged (see People v. Robinson, 74 N.Y.2d 773, 545 N.Y.S.2d 90, 543 N.E.2d 733, cert. denied sub nom. Robinson v. New York, 493 U.S. 966, 110 S.Ct. 411, 107 L.Ed.2d 376;  People v. Feili, 27 A.D.3d 318, 811 N.Y.S.2d 392;  People v. Pierre, 8 A.D.3d 904, 780 N.Y.S.2d 389;  People v. Turchio, 244 A.D.2d 366, 663 N.Y.S.2d 875).   Similarly, the seizure of the weapon from the defendant, as well the seizure of the drugs incidental thereto, was lawful (see People v. Mims, 32 A.D.3d 800, 821 N.Y.S.2d 565;  People v. Davenport, 9 A.D.3d 316, 780 N.Y.S.2d 14;  People v. Thompson, 232 A.D.2d 267, 648 N.Y.S.2d 548).   Accordingly, that branch of the defendant's omnibus motion which was to suppress physical evidence was properly denied.

The defendant's contentions that the prosecution failed to produce a necessary witness at the suppression hearing and that his plea of guilty was not knowingly, intelligently, and voluntarily entered are unpreserved for appellate review (see CPL 470.05[2];  People v. Shabazz, 99 N.Y.2d 634, 760 N.Y.S.2d 717, 790 N.E.2d 1146;  People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160;  People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363) and, in any event, are without merit (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, to the extent they are reviewable on direct appeal, are without merit.