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

540
KA 11-00941
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONNIE R. WALKER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered February 22, 2011. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of a controlled substance in the fourth degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
fourth degree (Penal Law § 220.09 [1]), defendant contends that he was
unlawfully searched after a traffic stop in the City of Rochester.
Specifically, defendant contends that the police officer’s pat-down
search was not justified based either on safety concerns or on the
odor of unburned marihuana. We reject that contention, inasmuch as we
conclude that it was justified based on the odor of unburned
marihuana. “[I]t 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
Cuffie, 109 AD3d 1200, 1201, lv denied 22 NY3d 1087). Here, the
police officers testified regarding their training on the
identification of marihuana and, on appeal, defendant does not
challenge their training but instead challenges only their
credibility. We discern no basis to disturb the court’s credibility
assessments of the officers inasmuch as “ ‘[n]othing about the
officer[s’] testimony was unbelievable as a matter of law, manifestly
untrue, physically impossible, contrary to experience, or self
contradictory’ ” (People v Williams, 115 AD3d 1344, 1345).
Furthermore, the court did not abuse its discretion in curtailing
defense counsel’s cross-examination of the officers because defense
counsel’s attempts to establish certain “contradictions in time” were
                                 -2-                           540
                                                         KA 11-00941

not relevant to the suppression issues before the court (see generally
People v Colvin, 112 AD3d 1348, 1348-1349, lv denied 22 NY3d 1155;
People v Agostini, 84 AD3d 1716, 1717, lv denied 17 NY3d 857; People v
Rutley, 57 AD3d 1497, 1497, lv denied 12 NY3d 821). Thus, the
officers had probable cause to search defendant (see Cuffie, 109 AD3d
at 1201; see also People v Virges, 118 AD3d 1445, 1445-1446; People v
Contant, 90 AD3d 779, 780, lv denied 18 NY3d 956). Defendant’s
reliance on People v Howington (96 AD3d 1440, 1441), a People’s
appeal, is misplaced because in that case we merely upheld the
suppression court’s credibility determination that the officer could
not have detected the odor of unburned marihuana. Here, we uphold the
court’s credibility determination otherwise.

     Contrary to defendant’s final contention, he is not entitled to a
new hearing. His assertion that the court erred in prohibiting him
from establishing that the subject stop was pretextual is without
merit because “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” (Cuffie, 109 AD3d at 1201 [internal
quotation marks omitted]; see People v Daniels, 117 AD3d 1573, 1574).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
