People v. Carmona , 149 A.D.3d 670 ( 2017 )

People v Carmona (2017 NY Slip Op 03275)

People v Carmona

2017 NY Slip Op 03275

Decided on April 27, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 27, 2017
Sweeny, J.P., Acosta, Renwick, Moskowitz, Kahn, JJ.

3863 84N/12

[*1]The People of the State of New York, Respondent,

v

Felipe Carmona, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Siobhan C. Atkins of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered April 24, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 3½ years, followed by 3 years of postrelease supervision, unanimously affirmed.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo , 41 NY2d 759, 761 [1977]). Testimony credited by the court established that an officer observed defendant engaging in what reasonably appeared to be a drug transaction, and that as the officer approached, he detected the odor of PCP (see People v Darby , 263 AD2d 112, 114 [1st Dept 2000], lv denied 95 NY2d 795 [2000]). The officer sufficiently explained his ability to smell the PCP at a distance, and defendant's arguments to the contrary rest on speculation and factual assertions unsupported by the record.

We perceive no basis for reducing the term of postrelease supervision.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 27, 2017

CLERK