PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Respondent, v. Robert SMITH, Defendant-Appellant.

Decided: October 15, 2009

GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, RENWICK, DeGRASSE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Gregory S. Chiarello of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Maxwell Wiley, J. at suppression hearing;  Ruth Pickholz, J. at plea and sentence), rendered May 28, 2008, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 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] ).   After observing the driver commit a traffic infraction, the police lawfully stopped the vehicle in which defendant was riding and lawfully ordered the occupants out of the car.   Furthermore, the officers smelled marijuana, which gave them probable cause to search the car and its occupants (see People v. Badger, 52 A.D.3d 231, 859 N.Y.S.2d 140 [2008] lv. denied 10 N.Y.3d 955, 863 N.Y.S.2d 139, 893 N.E.2d 445 [2008] ).   Regardless of whether the police had probable cause to arrest defendant at that point, they were justified in attempting to handcuff him when he resisted their efforts by trying to get back into the car and struggling with the officers (see People v. Youmans, 228 A.D.2d 345, 644 N.Y.S.2d 506 [1996] ).   During the struggle, defendant discarded a firearm, and this action was not the product of any unlawful police conduct.