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

967
KA 12-01595
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAKIM GRIMES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered March 2, 2012. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the third degree and criminal possession
of a controlled substance in the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the third degree (Penal Law § 220.16 [1]) and criminal
possession of a controlled substance in the fourth degree (§ 220.09
[1]). The charges arose from an incident in which police officers
detected the odor of marihuana emanating from a vehicle they had
stopped for a traffic violation. Defendant, a passenger in that
vehicle, was searched and found to possess narcotics.

     We reject defendant’s contention that the police lacked probable
cause to stop the vehicle. It is well settled that a traffic stop is
lawful where “a police officer has probable cause to believe that the
driver of an automobile has committed a traffic violation” (People v
Robinson, 97 NY2d 341, 349; see Whren v United States, 517 US 806,
810). Here, the police had probable cause to stop the vehicle because
they observed the driver pull his car into traffic from its parked
position at the curb without using a turn signal (see Vehicle and
Traffic Law § 1163 [a], [d]; People v Hawkins, 45 AD3d 989, 991, lv
denied 9 NY3d 1034).

     Contrary to defendant’s further contention, the police had
probable cause to search his person inasmuch as “[t]he odor of
marihuana emanating from a vehicle, when detected by an officer
                                 -2-                           967
                                                         KA 12-01595

qualified by training and experience to recognize it, is sufficient to
constitute probable cause to search a vehicle and its occupants”
(People v Cuffie, 109 AD3d 1200, 1201, lv denied 22 NY3d 1087
[internal quotation marks omitted]; see People v Virges, 118 AD3d
1445, 1445-1446). We reject defendant’s contention that the odor of
unburned marihuana could not serve as the basis for the search (see
People v Walker, 128 AD3d 1499, 1500, lv denied 26 NY3d 936).

     Defendant further contends that the search and seizure were
illegal because the police officers tailored their testimony to
establish probable cause to stop the vehicle. That contention is not
preserved for our review (see People v Estivarez, 122 AD3d 1292,
1292), and it is without merit in any event. The credibility
determinations of the hearing court are entitled to great deference
and will not be disturbed unless clearly unsupported by the record,
which is not the case here (see People v Ponzo, 111 AD3d 1347, 1347).

     Defendant contends that Supreme Court failed to make a proper
finding of a prior felony conviction pursuant to CPL 400.21 inasmuch
as the court failed to ask him whether he wanted to controvert any of
the allegations set forth in the CPL 400.21 statement. That
contention is not preserved for our review (see People v Pellegrino,
60 NY2d 636, 637; People v Butler, 96 AD3d 1367, 1368), and is without
merit in any event. Defendant admitted the prior felony conviction in
open court during the plea hearing and, thus, he waived strict
compliance with CPL 400.21 (see People v Vega, 49 AD3d 1185, 1186, lv
denied 10 NY3d 965). Moreover, although the court did not formally
ask defendant whether he wished to controvert any of the allegations
set forth in the CPL 400.21 statement, the record establishes that
defendant had an opportunity to do so (see People v Hughes, 28 AD3d
1185, 1185, lv denied 7 NY3d 790; see also People v Irvin, 111 AD3d
1294, 1297, lv denied 24 NY3d 1044, reconsideration denied 26 NY3d
930). Thus, under the circumstances, we conclude that there was the
requisite substantial compliance with CPL 400.21 (see Irvin, 111 AD3d
at 1297; Hughes, 28 AD3d at 1185).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
