People v. Badger

Jun 3, 2008
Versions:52 A.D.3d 231
859 N.Y.S.2d 140

Judgment, Supreme Court, New York County (James A. Yates, J., at hearing; Edward J. McLaughlin, J., at plea and sentence), rendered October 10, 2006, as amended October 17, 2006, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender whose prior conviction was a violent felony, to a term of 3 1/2 years, unanimously affirmed.

The court properly denied defendant‘s motion to suppress drugs recovered from his person. An experienced narcotics officer saw defendant engage in what reasonably appeared to be a drug transaction, and then drive away. Acting upon a description of defendant and his vehicle transmitted by radio, a field team stopped defendant‘s vehicle and apprehended him. The radio communication from the observing officer was, itself, a sufficient basis for a lawful arrest (see People v. Ketcham, 93 NY2d 416 [1999]; People v. Brown, 304 AD2d 321 [2003], lv denied 100 NY2d 536 [2003]). In addition, one of the apprehending officers detected the distinctive odor of marijuana emanating from the vehicle (see People v. Reisman, 29 NY2d 278, 284 [1971], cert denied 405 US 1041 [1972]), and this independently established probable cause to search the automobile and its occupants (see People v. Chestnut, 43 AD2d 260 [1974], affd 36 NY2d 971 [1975]). The hearing court properly credited an officer‘s testimony that he recognized the smell of marijuana.

We perceive no basis for reducing the sentence.

Concur—Andrias, J.P., Gonzalez, Moskowitz and DeGrasse, JJ.