PEOPLE v. FEILI

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

The PEOPLE of the State of New York, Respondent, v. Kamran FEILI, Defendant-Appellant.

Decided: March 21, 2006

TOM, J.P., GONZALEZ, SWEENY, CATTERSON, MALONE, JJ. Beldock Levine & Hoffman, LLP, New York (Myron Beldock of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered April 6, 2005, convicting defendant, upon his plea of guilty, 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.

The court properly denied defendant's suppression motion.   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 [1977] ).   Following a lawful traffic stop of a car in which defendant was a passenger, the officers had probable cause to search defendant after they detected the smell of marijuana emanating from the car (see People v. Pierre, 8 A.D.3d 904, 905, 780 N.Y.S.2d 389 [2004], lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004] ).   Furthermore, prior to the search, defendant admitted possessing marijuana.   Additional factors justifying the search were that defendant acted suspiciously when directed out of the car and that his jacket pockets were bulging (see People v. Hensen, 21 A.D.3d 172, 799 N.Y.S.2d 444 [2005], lv. denied 5 N.Y.3d 828, 804 N.Y.S.2d 43, 837 N.E.2d 742 [2005] ).   Defendant's admission to the officers that he possessed marijuana was not subject to suppression for lack of Miranda warnings, because he made the admission during the course of a routine traffic stop and was not in custody for Miranda purposes (see People v. Gutierrez, 13 A.D.3d 268, 269, 787 N.Y.S.2d 266 [2004], lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005] ).

Defendant is not entitled, pursuant to the amelioration doctrine of People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 543 N.E.2d 69 [1989], to the benefit of the reduced penalty contained in the Drug Law Reform Act (L. 2004, ch. 738), because the Legislature has expressly stated that the provision upon which defendant relies applies only to crimes committed after its effective date (People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005] ).   Although defendant was sentenced after the effective date of the legislation, he committed the crime before that date.