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

983
KA 09-00497
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VICTOR CUFFIE, DEFENDANT-APPELLANT.


PETER J. GLENNON, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered January 7, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second 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 weapon in the
second degree (Penal Law § 265.03 [3]). The conviction arose out of a
traffic stop of a vehicle in which defendant was a passenger.
Defendant contends that County Court erred in refusing to suppress the
firearm that he was charged with possessing. Specifically, defendant
contends that the testimony of the People’s witnesses at the
suppression hearing was contradictory and that the People failed to
satisfy their initial burden of establishing the legality of the
police conduct. We reject defendant’s contentions. As defendant
correctly concedes, the police were justified in stopping the vehicle
based upon the driver’s failure to signal his intention to turn for
the requisite distance before the intersection (see Vehicle and
Traffic Law § 1163 [b]; see generally People v Horge, 80 AD3d 1074,
1074; People v Smith, 66 AD3d 514, 514, lv denied 13 NY3d 942).
Although defendant contends that the stop was pretextual, we reject
that contention inasmuch as “a traffic stop is lawful where, as here,
‘a police officer has probable cause to believe that the driver of an
automobile has committed a traffic violation, . . . [regardless of]
the primary motivation of the officer’ ” (People v Binion, 100 AD3d
1514, 1515, lv denied 21 NY3d 911, quoting People v Robinson, 97 NY2d
341, 349).

     Additionally, we conclude that the police had probable cause to
search the vehicle. Two police officers testified at the suppression
                                 -2-                          983
                                                        KA 09-00497

hearing that, after the vehicle was stopped, they approached it from
opposite sides and detected the odor of marihuana emanating from
inside the vehicle through the open front windows. Both officers
further testified that they had been trained in the detection of
marihuana and had detected the odor of marihuana on numerous occasions
prior to the traffic stop at issue. Contrary to the contention of
defendant, it is well established that “[t]he odor of marihuana
emanating from a vehicle, when detected by an officer qualified by
training and experience to recognize it, is sufficient to constitute
probable cause” to search a vehicle and its occupants (People v
Gaines, 57 AD3d 1120, 1121 [internal quotation marks omitted]; see
People v Chestnut, 43 AD2d 260, 261, affd 36 NY2d 971; People v
Robinson, 103 AD3d 421, 421-422, lv denied 20 NY3d 1103; People v
Cosme, 70 AD3d 1364, 1364, lv denied 14 NY3d 886; People v Lightner,
56 AD3d 1274, 1274, lv dismissed 12 NY3d 760, 763; People v Badger, 52
AD3d 231, 232, lv denied 10 NY3d 955). Further, the driver admitted
that someone may have smoked marihuana in the vehicle prior to the
stop (see People v George, 78 AD3d 728, 728-729, lv denied 16 NY3d
859), and the police witnesses testified that the vehicle continued to
smell of marihuana even after the occupants were removed from the
vehicle (cf. People v Smith, 98 AD3d 590, 592). Notably, the
subsequent search of the vehicle yielded 16 bags of marihuana under
the rear passenger’s seat.

     With respect to the alleged contradictions in the officers’
testimony, we conclude that such contradictions are minor or
immaterial to the lawfulness of the police conduct, and thus provide
no basis to disturb the court’s credibility determinations (see People
v Shaw, 66 AD3d 1417, 1418, lv denied 14 NY3d 773). In particular,
whether the police removed the driver from the vehicle before or after
they ran his license and registration is irrelevant inasmuch as the
police had probable cause to remove the occupants from the vehicle and
search the vehicle immediately upon detecting the odor of marihuana
(see Robinson, 103 AD3d at 421-422; Cosme, 70 AD3d at 1364; Badger, 52
AD3d at 232; see also Gaines, 57 AD3d at 1121). Thus, “[a]ccording
appropriate deference to [the court’s] assessment of witness
credibility” (Horge, 80 AD3d at 1074), we conclude that the police
lawfully searched the vehicle and that the court therefore properly
refused to suppress the evidence recovered therefrom (see George, 78
AD3d at 728-729; Cosme, 70 AD3d at 1364; Smith, 66 AD3d at 514).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
