RICKS, JR., ALLEN L., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1232
KA 14-00834
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ALLEN L. RICKS, JR., DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.
ALLEN L. RICKS, JR., DEFENDANT-APPELLANT PRO SE.
KRISTYNA S. MILLS, DISTRICT ATTORNEY, WATERTOWN (NICOLE L. KYLE OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered December 16, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree and attempted 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 attempted criminal possession of a
controlled substance in the third degree (Penal Law §§ 110.00, 220.16
[1]) and attempted criminal possession of a weapon in the second
degree (§§ 110.00, 265.03 [3]). We agree with defendant that the
waiver of the right to appeal was not valid inasmuch as the “inquiry
made by [County] Court was insufficient to establish that the court
engage[d] the defendant in an adequate colloquy to ensure that the
waiver of the right to appeal was a knowing and voluntary choice”
(People v Sanford, 138 AD3d 1435, 1436 [internal quotation marks
omitted]), and because “ ‘[t]he court [also] did not inquire of
defendant whether he understood the written waiver or whether he had
even read the waiver before signing it’ ” (id., quoting People v
Bradshaw, 18 NY3d 257, 262). However, defendant failed to preserve
for our review his contention that his plea was not knowing,
intelligent and voluntary because he did not move to withdraw the plea
or to vacate the judgment of conviction (see People v Laney, 117 AD3d
1481, 1482), and this case does not fall within the rare exception to
the preservation requirement (see People v Lopez, 71 NY2d 662, 666;
Sanford, 138 AD3d at 1436).
-2- 1232
KA 14-00834
Defendant further contends in his main and pro se supplemental
briefs that the court erred in refusing to suppress the evidence
seized from defendant and the trunk of his vehicle because the police
did not have probable cause to search defendant or his vehicle. We
reject that contention. The record establishes, and defendant does
not dispute, that the arresting officer was entitled to stop
defendant’s vehicle based on a violation of the Vehicle and Traffic
Law (see People v Raghnal, 135 AD3d 1168, 1168-1169, lv denied 27 NY3d
1137; see also § 375 [31]; see generally People v Cuffie, 109 AD3d
1200, 1201, lv denied 22 NY3d 1087). We also conclude that, following
the traffic stop, the officer had probable cause to search defendant
and the vehicle. Contrary to defendant’s contention, 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” (Cuffie, 109 AD3d at 1201 [internal
quotation marks omitted]; see People v Chestnut, 43 AD2d 260, 261-262,
affd 36 NY2d 971; see also People v Mack, 114 AD3d 1282, 1282, lv
denied 22 NY3d 1200). The remaining contentions of defendant,
including those raised in his pro se supplemental brief and reply
brief, are not preserved for our review (see CPL 470.05 [2]), and we
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court