People v Salley

People v Salley 2022 NY Slip Op 03481 Decided on May 31, 2022 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 and Entered: May 31, 2022
Before: Webber, J.P., Kern, Oing, Scarpulla, Pitt, JJ.
Ind. No. 4919/16 Appeal No. 16035 Case No. 2019-2349

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

v

Daheem Salley, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Carola M. Beeney of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Karl Z. Deuble of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J. at hearing; Curtis Farber, J. at plea and sentencing), rendered January 30, 2019, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, 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]).

During a lawful stop of a taxi for a traffic infraction, the police noticed, among other things, the odor of marijuana. Under the prevailing law at the time of this incident, the mere odor of marijuana justified the search of a car and its occupants (see e.g. People v Smith, 66 AD3d 514 [1st Dept 2009], lv denied 13 NY3d 942 [2010]). Accordingly, the search of defendant's person, which yielded a pistol and marijuana, was lawful on that basis. Although newly-enacted Penal Law § 222.05(3) affects whether a finding of probable cause may be made on evidence of the odor of cannabis, that statute should not be applied retroactively (People v Pastrana, AD3d, 2022 NY Slip Op 03058, *2 [1st Dept 2022]; People v Vaughn, 203 AD3d 1729, 1730 [4th Dept 2022]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 31, 2022