        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

679
KA 11-02514
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

JAMELL HOWINGTON, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR APPELLANT.

JAMES K. WEEKS, FAYETTEVILLE, FOR DEFENDANT-RESPONDENT.


     Appeal from an amended order of the Supreme Court, Onondaga
County (John J. Brunetti, A.J.), dated October 29, 2010. The amended
order granted the motion of defendant to suppress certain physical
evidence.

     It is hereby ORDERED that the amended order so appealed from is
unanimously affirmed.

     Memorandum: Having filed the requisite statement pursuant to CPL
450.50, the People appeal from an amended order granting defendant’s
motion to suppress the physical evidence seized by the police after a
traffic stop. A Syracuse police officer testified at the suppression
hearing that he stopped a vehicle operated by defendant after
observing several traffic infractions, and that he detected the odor
of unburned marihuana when he approached the vehicle. The hearing
testimony further established, however, that the only marihuana found
in the vehicle was in a closed plastic bag inside a pocket in
defendant’s clothing. In addition, the evidence at the suppression
hearing established that defendant drove the vehicle with the windows
open for several blocks prior to the stop, and that they remained open
after the vehicle was stopped by the police. Supreme Court expressly
stated that it did “not credit the testimony that the [odor] of raw
mari[h]uana was present,” and the court thus concluded that the
officers did not have probable cause to arrest defendant for
possession of marihuana. The court therefore concluded that the
officers did not have the right to search defendant incident to an
arrest for possession of marihuana and granted defendant’s motion
seeking to suppress the items discovered during the search, including
the marihuana, money and other drugs possessed by defendant.

     Initially, we note that the People raised an alternative basis
for the search at the suppression hearing, but they have “failed to
address in their brief on appeal any issues with respect to [that
                                 -2-                           679
                                                         KA 11-02514

alternative basis], and thus they are deemed to have abandoned any
contentions with respect thereto” (People v Hunter, 92 AD3d 1277,
1279; see People v Sorrells, 58 AD3d 1080, 1080 n, lv denied 12 NY3d
921). Rather, the People contend on appeal that the court erred in
suppressing the evidence because the odor of the unburned marihuana
provided probable cause for the search, and that the court erred in
refusing to credit the officer’s testimony that he smelled the
marihuana. “It is well settled that the suppression court’s
credibility determinations and choice between conflicting inferences
to be drawn from the proof are granted deference and will not be
disturbed unless unsupported by the record” (People v Esquerdo, 71
AD3d 1424, 1424, lv denied 14 NY3d 887 [internal quotation marks
omitted]; see People v McAvoy, 70 AD3d 1467, 1467, lv denied 14 NY3d
890; People v Layboult, 227 AD2d 773, 775). Here, the court’s
determination that the officer could not have smelled the unburned
marihuana is supported by the evidence in the record and was based
solely upon the court’s assessment of the credibility of the witnesses
at the suppression hearing, and we perceive no basis to disturb that
determination (see People v Vaughan, 48 AD3d 1069, 1071, lv denied 10
NY3d 845, cert denied 555 US 910; see generally People v Gerena, 49
AD3d 1204, 1205, lv denied 10 NY3d 958). In view of our conclusion
that the court’s determination that the officer could not have
detected the odor of unburned marihuana has support in the record and
should not be disturbed, we do not address the further contention of
the People that such odor, combined with defendant’s “furtive
movements,” justified the search.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
