People v. Brown

308 A.D.2d 398, 764 N.Y.S.2d 430, 2003 N.Y. App. Div. LEXIS 9786

Opinion

—Judgment, Supreme Court, New York County (James Yates, J., at hearing; Renee White, J., at plea and sentence), rendered January 15, 2002, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4XA¡ to 9 years, unanimously affirmed.

Defendant’s suppression motion was properly denied. 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]). The officers observed defendant handling an unlit cigar that they recognized, from their experience, as having been modified for the purpose of smoking marijuana. This provided, at the very least, a common-law-right to approach and inquire (People v De Bour, 40 NY2d 210, 223 [1976]). The police merely approached defendant and did not seize him in any manner, whereupon defendant began to eat the cigar, which gave off a smell that the officers recognized as that of marijuana. This provided probable cause for defendant’s arrest (see People v Turchio, 244 AD2d 366 [1997], lv denied 91 NY2d 881 [1997]), which led to the lawful recovery of cocaine from his person. Concur — Saxe, J.P., Rosenberger, Williams, Lerner and Friedman, JJ.