People v. Francois , 30 N.Y.S.3d 349 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 107641
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
REGINAL FRANCOIS,
Appellant.
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Calendar Date: February 18, 2016
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
Anthony L. Riccio, New York City, for appellant.
P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.
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Garry, J.
Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered January 7, 2014, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
forged instrument in the second degree (five counts).
In September 2012, two state troopers conducted a traffic
stop of defendant's vehicle after observing that it had very dark
tinted windows, such that the interior was not visible. Upon
making contact with the driver, the troopers detected a strong
odor of marihuana emanating from the vehicle and inquired about
its source. In response, a passenger in the vehicle admitted to
having smoked marihuana earlier in the day. One of the troopers
then ran a check of defendant's license, which revealed that his
driving privileges had been suspended, and the trooper also
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tested and confirmed that the vehicle's windows exceeded the
statutory tint limit (see Vehicle and Traffic Law § 375 [12-a]
[b] [1]). The trooper then ordered defendant to exit the
vehicle. As defendant was doing so, the trooper noticed a wallet
on the driver side seat of the vehicle. The trooper searched
this wallet, and discovered a Florida driver's license and four
credit cards bearing a different name than defendant had
provided. Based upon the trooper's experience, these appeared to
be forged. Defendant was thereafter charged with five counts of
possession of a forged instrument in the second degree. A
Mapp/Dunaway hearing was held in which defendant argued that the
troopers lacked legal justification to search the wallet and that
the evidence obtained as a result of the search should be
suppressed. Defendant further argued that, in light of the
People's failure to preserve the wallet as evidence, an adverse
inference against the People should be taken. County Court
denied defendant's motion to suppress the wallet and reserved
decision on defendant's request for an adverse inference.
Defendant thereafter pleaded guilty to all five counts of the
indictment, and was sentenced to five concurrent prison terms of
3 to 6 years. Defendant appeals.
We agree with County Court that the search of the wallet
was legally justified. As this Court has repeatedly held,
"'[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 Rasul, 121 AD3d 1413, 1415
[2014], quoting People v Cuffie, 109 AD3d 1200, 1201 [2013], lv
denied 22 NY3d 1087 [2014]). Where the search of a vehicle is
justified by probable cause, officers may also search any of the
contents of the vehicle that may conceal the contraband sought
(see United States v Ross, 456 US 798, 825 [1982]; People v
Ellis, 62 NY2d 393, 398 [1984]; People v Horge, 80 AD3d 1074,
1075 [2011]). Here, the trooper testified that he was able to
identify the odor of marihuana in the vehicle as a result of his
training and experience as a police officer, and that he had
located marihuana secreted within wallets during other searches.
This testimony demonstrated that adequate legal justification
existed for the search of the vehicle and its contents, including
the wallet (see People v Horge, 80 AD3d at 1074; People v Black,
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59 AD3d 1050, 1051 [2009], lv denied 12 NY3d 851 [2009]).
Defendant's argument that he was entitled to an adverse
inference due to the People's failure to preserve the wallet was
forfeited by his guilty plea, as County Court had not yet ruled
on that aspect of the motion at the time of the plea (see People
v Hansen, 95 NY2d 227, 231-232 [2000]; People v Williams, 214
AD2d 437, 437-438 [1995], lv denied 86 NY2d 805 [1995]; People v
Hardy, 187 AD2d 810, 812 [1992]). In any event, there was no
prejudice to defendant (see People v Haupt, 71 NY2d 929, 931
[1988]; People v Cannonier, 236 AD2d 619, 619 [1997], lv denied
89 NY2d 1033 [1997]).
Peters, P.J., Rose and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court