The People, etc., respondent, v. Kashiem Lang, appellant. (2026)

Submitted—September 28, 2026

DECISION & ORDER

K/

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Karen Gopee, J.), rendered May 3, 2023, convicting him of criminal possession of a weapon in the second degree (four counts), upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing (Stephanie Zaro, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED, that the judgment is affirmed.

On a motion by a defendant to suppress physical evidence, the People have the burden of going forward to show the legality of the police conduct in the first instance (see People v. Fletcher, 248 AD3d 1136, 1136).  If the People establish the legality of the police conduct by credible evidence, the defendant bears the burden of establishing that the arrest was not based on probable cause or that the police conduct was otherwise illegal (see People v. Phillip, 244 AD3d 869, 871).  The hearing court's credibility determinations are entitled to deference on appeal (see People v. Fletcher, 248 AD3d at 1136).

Here, the Supreme Court properly denied that branch of the defendant's motion which was to suppress physical evidence.  As the law existed in 2020, the odor of marijuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, was sufficient to constitute probable cause to search the vehicle and its occupants (see People v. Riley 218 AD3d 612, 613).  At the suppression hearing, the police officer who initiated a stop and search testified that he had training to detect the smell of marijuana and that, while approaching the defendant's vehicle with his windows open, he smelled the odor of marijuana emanating from the vehicle (see id.;  People v. Henderson, 197 AD3d 663, 664).  Contrary to the defendant's contention, the officer's testimony was not incredible as a matter of law (see People v. Henderson 197 AD3d at 664–665), and, in exercising our own factual review power, there is no basis to disturb the court's determination to credit the officer's uncontradicted testimony that he smelled marijuana emanating from the vehicle (see id. at 665).

Contrary to the defendant's further contention, the Supreme Court did not improvidently exercise its discretion in limiting his cross-examination at trial.  “[T]he right of cross-examination is ‘implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process' ” (People v. Smith, 27 NY3d 652, 659, quoting Chambers v. Mississippi, 410 U.S. 284, 295).  “[P]rovided that they have a good faith basis for the inquiry, ․ defendants should be permitted to explore specific allegations of wrongdoing relevant to the credibility of the law enforcement witness, subject to the discretion of the trial court” (People v. Rouse 34 NY3d 269, 276;  see People v. Smith, 27 NY3d at 662).  Here, the defendant failed to demonstrate that a law enforcement witness's failure to appear in traffic court on two occasions or unsubstantiated allegations of his use of excessive force were relevant to the witness's credibility (see People v. Gittens, 178 AD3d 1070, 1071).

The defendant's contention that the sentence imposed by the Supreme Court punished him for exercising his right to a jury trial is unpreserved for appellate review (see CPL 470.05[2] ).  In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for exercising his right to trial (see People v. Grant, 248 AD3d 1056, 1058).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 92).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

GENOVESI, J.P., CHRISTOPHER, WAN and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court