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holding that the trial court properly denied the defendant's motion to suppress the search of a car since a bag that had been thrown from the car contained a cigar that had been modified for the purpose of smoking marijuana arid since loose tobacco or marijuana could be seen on the floorboard of the car
Summary of this case from State v. SimmonsOpinion
2786, 2786A
January 14, 2003.
Judgment, Supreme Court, New York County (Renee White, J. at suppression hearing; Laura Visitacion-Lewis, J. at plea and sentence), entered September 26, 2001, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 5½ years, and order, same court (Laura Visitacion-Lewis, J.), entered on or about January 2, 2002, which denied defendant's motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.
Eli R. Koppel, for Respondent.
Lyssa M. Sampson, for Defendant-Appellant.
Nardelli, J.P., Tom, Mazzarelli, Andrias, Saxe, JJ.
The court properly denied defendant's motion to suppress a gun recovered from the car he was driving. The police had probable cause to search the car under the automobile exception to the warrant requirement (see People v. Blasich, 73 N.Y.2d 673, 678-79). The police recovered a bag that had been thrown from the car, and, relying on their expertise, recognized that it contained a cigar that had been modified for the purpose of smoking marijuana. From a lawful vantage point outside the car, an officer also observed what appeared to be loose tobacco or marijuana on the floor of the car. At this point, the police had probable cause to believe that the occupants of the car had been smoking marijuana and that the car contained that substance (see People v. McRay, 51 N.Y.2d 594, 601-02; Matter of Camille H., 215 A.D.2d 143; People v. Coggins, 175 A.D.2d 924, 925).
In any event, the officer's initial search, made by leaning into the car and shining a flashlight, had no causal connection with defendant's subsequent suspicious conduct. Defendant became agitated, reached under the driver's seat, and pushed the officer's hand away from that area. After being ordered out of the car, defendant and a passenger suddenly ran away. These suspicious actions reinforced the officers' preexisting probable cause to believe the vehicle contained contraband. At the very least, the totality of the foregoing circumstances provided the police with a reasonable belief that a weapon posing a threat to their safety might be present, and justified a limited protective intrusion into the area associated with defendant's suspicious movements (see People v. Mundo, 99 N.Y.2d 55 [Nov 19, 2002], 2002 WL 31552917). Accordingly, the officer lawfully reached under the seat and found a gun.
We also note that prior to reaching under the seat, the officer had heard a radio transmission giving the description of suspects in an armed robbery that had been committed earlier that night. Although the description could not be the sole basis for a finding of probable cause because its details were not established at the hearing (see People v. Dodt, 61 N.Y.2d 408, 415-416), the officer's testimony that the occupants of the car fit the description provided additional support for the hearing court's findings.
Defendant's pre-sentence motion to withdraw his guilty plea, and his motion to vacate judgment pursuant to CPL 440.10, were both properly denied. Although defendant claims that the court and/or his attorney were obligated to advise him of possible adverse consequences of his plea with regard to his federal probation status, there is nothing in the record to indicate that the plea actually led to such consequences, or whether such consequences should be considered "direct" or "collateral" (see People v. Ford, 86 N.Y.2d 397, 403). Defendant's motion to vacate judgment contained no factual allegations relating to this issue. To the extent that the existing record permits review, it establishes that defendant's guilty plea was knowingly, intelligently and voluntarily entered (see People v. Fiumefreddo, 82 N.Y.2d 536, 543-544), and that he received meaningful representation (see People v. Ford,supra at 404-405).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.