PEOPLE v. MORAN (2009)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered February 15, 2008, convicting him of criminal possession of marijuana 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 County Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence.  “The credibility determinations of a hearing court are entitled to great deference on appeal, and will not be disturbed unless clearly unsupported by the record” (People v. Martinez, 58 A.D.3d 870, 870, 873 N.Y.S.2d 128;  see People v. Jackson, 65 A.D.3d 1164, 885 N.Y.S.2d 213).

 The record supports the County Court's determination that the defendant consented to the police entry to his residence (see People v. Love, 273 A.D.2d 842, 710 N.Y.S.2d 491).   Indeed, the defendant called the police for assistance following an alleged attempted robbery or burglary at his residence.   According to the police officer who responded to the defendant's residence to investigate this alleged incident, the defendant “led” the police into the kitchen and living room.   While lawfully present in the kitchen and living room, the officer detected an “extremely strong odor of marijuana” and observed marijuana in “plain view” (see People v. Brown, 96 N.Y.2d 80, 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170;  see also Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112).

Moreover, contrary to the defendant's contention, the seizure of certain physical evidence did not constitute “fruit of the poisonous tree” (Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 [internal quotation marks omitted];  see People v. Day, 8 A.D.3d 495, 496, 778 N.Y.S.2d 513).

The defendant's remaining contentions are without merit.