People v. Johnson

People v Johnson (2020 NY Slip Op 05153)

People v Johnson

2020 NY Slip Op 05153

Decided on September 29, 2020

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: September 29, 2020
Ind No. 3199/15 Appeal No. 11857 Case No. 2017-954
Before: Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.

Janet E. Sabel, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Nathan Brandon Shi of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April 14, 2016, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third and fourth degrees, and unlawful possession of marijuana, and sentencing him to a term of three years' probation and a $75 fine, unanimously affirmed.

The motion court properly denied defendant's motion to suppress physical evidence. There is no basis for disturbing the court's credibility determinations. An officer's observations of a strong smell of marijuana coming directly from defendant and a plastic bag protruding from his pocket warranted the officer's inquiry into whether defendant had marijuana on him, and defendant's incriminating reply provide probable cause for his arrest (see People v Loretta, 107 AD3d 541, 541 [1st Dept 2013], lv denied 22 NY3d 1157 [2014]). The evidence also supports the conclusion that the search was "incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not" (People v Reid, 24 NY3d 615, 619 [2014]). We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 29, 2020