PEOPLE v. BROWN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Gregory BROWN, Defendant-Appellant.

Decided: September 25, 2003

SAXE, J.P., ROSENBERGER, WILLIAMS, LERNER and FRIEDMAN, JJ. Linda Kolodny, for Respondent. Jojo Annobil, for Defendant-Appellant.

Judgment, Supreme Court, New York County (James Yates, J. at hearing;  Renee White, J. at plea and sentence), rendered January 15, 2002, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

Defendant's suppression motion was properly denied.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   The officers observed defendant handling an unlit cigar that they recognized, from their experience, as having been modified for the purpose of smoking marijuana.   This provided, at the very least, a common-law right to approach and inquire (People v. DeBour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   The police merely approached defendant and did not seize him in any manner, whereupon defendant began to eat the cigar, which gave off a smell that the officers recognized as that of marijuana.   This provided probable cause for defendant's arrest (see People v. Turchio, 244 A.D.2d 366, 663 N.Y.S.2d 875, lv. denied 91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652), which led to the lawful recovery of cocaine from his person.