PEOPLE v. NORMAN (2016)

The PEOPLE, etc., respondent, v. Jahan H. NORMAN, appellant.

No. 2014–09696.

Decided: September 21, 2016

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ. Robert DiDio, Kew Gardens, NY (Elisha Rudolph of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Roni C. Piplani, and Meredith D'Angelo of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 2, 2014, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree (two counts), criminal possession of a controlled substance in the seventh degree (two counts), criminal possession of marihuana in the fourth degree, criminal possession of marihuana in the fifth degree, and unlawful possession of marihuana, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The credibility determinations of a hearing court are accorded deference on appeal, and will not be disturbed unless clearly unsupported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Condon, 100 A.D.3d 920, 954 N.Y.S.2d 212). Here, the record supports the hearing court's determination that probable cause existed for the warrantless search of the defendant's vehicle, based on an experienced narcotics officer's detection of the odor of burnt marihuana emanating from the defendant's parked vehicle (see People v. McLaren, 131 A.D.3d 548, 549, 14 N.Y.S.3d 504; People v. John, 119 A.D.3d 709, 710, 988 N.Y.S.2d 885; People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383; People v. Robinson, 103 A.D.3d 421, 959 N.Y.S.2d 188; People v. Chestnut 43 A.D.2d 260, 351 N.Y.S.2d 26, affd. 36 N.Y.2d 971, 373 N.Y.S.2d 564, 335 N.E.2d 865). Thus, the officer necessarily had reasonable suspicion of criminal activity which justified his action in detaining the defendant by placing his police vehicle in a position that did not allow the defendant to leave (see generally People v. Jennings, 45 N.Y.2d 998, 999, 413 N.Y.S.2d 117, 385 N.E.2d 1045; People v. Loper, 115 A.D.3d 875, 879, 981 N.Y.S.2d 806; People v. Hurdle, 106 A.D.3d 1100, 965 N.Y.S.2d 626). Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence recovered during the vehicle search.