People v. Hawkins

Appellate Division of the Supreme Court of New York

People v. Hawkins

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 2026

Docket2023-04498

StatusPublished

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People v. Hawkins, (N.Y. Ct. App. 2026).

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People v Hawkins - 2026 NY Slip Op 04430

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Law Reporting
Bureau Thomas J.K. Smith, State Reporter

People v Hawkins

2026 NY Slip Op 04430

July 15, 2026

Appellate Division, Second Department

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

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

The People of the State of New York, respondent,

v

Christopher Hawkins, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 15, 2026

2023-04498, (Ind. No. 70698/21)

Lara J. Genovesi, J.P.

Lillian Wan

Carl J. Landicino

Phillip Hom, JJ.

Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Katherine Pedlow of counsel), for respondent.

[*1]

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), rendered March 15, 2023, convicting him criminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Mary L. Bejarano, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Following a suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress physical evidence. Thereafter, the defendant was convicted, upon his plea of guilty, of criminal possession of a weapon in the fourth degree in violation of Penal Law § 265.01(1). The defendant appeals.

"Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime. [I]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search" (People v Babadzhanov, 204 AD3d 685, 686 [citations and internal quotation marks omitted]).

"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" (People v Harris, 192 AD3d 151, 157-158 [internal quotation marks omitted]; see People v Black, 237 AD3d 738, 739). "Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible" (People v Harris, 192 AD3d at 158 [internal quotation marks omitted]; see People v Austin, 203 AD3d 732, 736). "A hearing court's determination as to witness credibility is accorded great weight on appeal, as it saw and heard the witnesses, and its determination will not be disturbed unless clearly unsupported by the evidence" (People v Julien, 201 AD3d 948, 950 [internal quotation marks omitted]; see People v Fletcher, 130 AD3d 1063, 1064, affd 27 NY3d 1177). "[If] the People establish the legality of the police conduct by credible evidence, the defendant bears the burden of establishing that the arrest was not based on probable cause or that the police conduct was otherwise [*2]illegal" (People v Harris, 192 AD3d at 158 [internal quotation marks omitted]; see People v Fletcher, 130 AD3d at 1064). The defendant can discharge his or her burden of proof by establishing the facts in issue on a preponderance of evidence standard (see People v Etienne, 233 AD3d 705, 706; People v Dunbar, 188 AD3d 1247, 1248).

"[W]here an arrest or search is made without a warrant, the reviewing court must be supplied with the description upon which the police acted and sufficient evidence to make its own independent determination of whether the person arrested or the item seized reasonably fit that description" (People v Balkman, 35 NY3d 556, 560 [internal quotation marks omitted]; see People v Dodt, 61 NY2d 408, 415). "The court must consider whether or not the action of the police was justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible" (People v Mortel, 197 AD3d 196, 203 [internal quotation marks omitted]; see People v Joyette, 219 AD3d 628, 630).

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress a loaded firearm recovered from his vehicle. At the suppression hearing, the People proffered, among other things, the testimony of two police officers, who testified that, on the day of the arrest, January 21, 2021, they initiated a traffic stop. The officers indicated that, upon their approach to the defendant driver, they observed the "strong odor of marijuana" and "a grinder [that is] used for marijuana" visible on the dashboard. An officer testified that he searched the vehicle after the defendant driver admitted, when asked about the marijuana smell, that he "had been smoking earlier." The odor of marijuana emanating from the vehicle together with the officers' observations—under the law in effect at the time—were sufficient to constitute probable cause to search the vehicle (see People v Dedmon, 243 AD3d 583, 584; People v Riley, 218 AD3d 612, 613; People v Williams, 208 AD3d 899, 901). Further, "the operative date for determining whether Penal Law § 222.05(3) applies is when the search was performed, not when the suppression hearing was held" (People v Fasoli, 242 AD3d 900, 902; see People v Pastrana, 41 NY3d 23, 29-30).

The defendant's contention that the mandatory surcharge and fees imposed at sentencing (see Penal Law § 60.35[1][a]) should be waived pursuant to CPL 420.35(2-a) is unpreserved for appellate review (see id. § 470.05[2]; People v Jawan Lee, 236 AD3d 924; People v Taj W., 235 AD3d 1016, 1016). Under the circumstances, and in the absence of the People's consent, we decline to reach the issue in the exercise of our interest of justice jurisdiction (see People v Clarke, 243 AD3d 582; People v Acevedo, 210 AD3d 1106, 1107).

GENOVESI, J.P., WAN, LANDICINO and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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People v Hawkins - 2026 NY Slip Op 04430

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Law Reporting
Bureau Thomas J.K. Smith, State Reporter

People v Hawkins

2026 NY Slip Op 04430

July 15, 2026

Appellate Division, Second Department

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

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

The People of the State of New York, respondent,

v

Christopher Hawkins, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 15, 2026

2023-04498, (Ind. No. 70698/21)

Lara J. Genovesi, J.P.

Lillian Wan

Carl J. Landicino

Phillip Hom, JJ.

Patricia Pazner, New York, NY (Sarah B. Cohen of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Katherine Pedlow of counsel), for respondent.

[*1]

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), rendered March 15, 2023, convicting him criminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Mary L. Bejarano, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Following a suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress physical evidence. Thereafter, the defendant was convicted, upon his plea of guilty, of criminal possession of a weapon in the fourth degree in violation of Penal Law § 265.01(1). The defendant appeals.

"Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime. [I]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search" (People v Babadzhanov, 204 AD3d 685, 686 [citations and internal quotation marks omitted]).

"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" (People v Harris, 192 AD3d 151, 157-158 [internal quotation marks omitted]; see People v Black, 237 AD3d 738, 739). "Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible" (People v Harris, 192 AD3d at 158 [internal quotation marks omitted]; see People v Austin, 203 AD3d 732, 736). "A hearing court's determination as to witness credibility is accorded great weight on appeal, as it saw and heard the witnesses, and its determination will not be disturbed unless clearly unsupported by the evidence" (People v Julien, 201 AD3d 948, 950 [internal quotation marks omitted]; see People v Fletcher, 130 AD3d 1063, 1064, affd 27 NY3d 1177). "[If] the People establish the legality of the police conduct by credible evidence, the defendant bears the burden of establishing that the arrest was not based on probable cause or that the police conduct was otherwise [*2]illegal" (People v Harris, 192 AD3d at 158 [internal quotation marks omitted]; see People v Fletcher, 130 AD3d at 1064). The defendant can discharge his or her burden of proof by establishing the facts in issue on a preponderance of evidence standard (see People v Etienne, 233 AD3d 705, 706; People v Dunbar, 188 AD3d 1247, 1248).

"[W]here an arrest or search is made without a warrant, the reviewing court must be supplied with the description upon which the police acted and sufficient evidence to make its own independent determination of whether the person arrested or the item seized reasonably fit that description" (People v Balkman, 35 NY3d 556, 560 [internal quotation marks omitted]; see People v Dodt, 61 NY2d 408, 415). "The court must consider whether or not the action of the police was justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible" (People v Mortel, 197 AD3d 196, 203 [internal quotation marks omitted]; see People v Joyette, 219 AD3d 628, 630).

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress a loaded firearm recovered from his vehicle. At the suppression hearing, the People proffered, among other things, the testimony of two police officers, who testified that, on the day of the arrest, January 21, 2021, they initiated a traffic stop. The officers indicated that, upon their approach to the defendant driver, they observed the "strong odor of marijuana" and "a grinder [that is] used for marijuana" visible on the dashboard. An officer testified that he searched the vehicle after the defendant driver admitted, when asked about the marijuana smell, that he "had been smoking earlier." The odor of marijuana emanating from the vehicle together with the officers' observations—under the law in effect at the time—were sufficient to constitute probable cause to search the vehicle (see People v Dedmon, 243 AD3d 583, 584; People v Riley, 218 AD3d 612, 613; People v Williams, 208 AD3d 899, 901). Further, "the operative date for determining whether Penal Law § 222.05(3) applies is when the search was performed, not when the suppression hearing was held" (People v Fasoli, 242 AD3d 900, 902; see People v Pastrana, 41 NY3d 23, 29-30).

The defendant's contention that the mandatory surcharge and fees imposed at sentencing (see Penal Law § 60.35[1][a]) should be waived pursuant to CPL 420.35(2-a) is unpreserved for appellate review (see id. § 470.05[2]; People v Jawan Lee, 236 AD3d 924; People v Taj W., 235 AD3d 1016, 1016). Under the circumstances, and in the absence of the People's consent, we decline to reach the issue in the exercise of our interest of justice jurisdiction (see People v Clarke, 243 AD3d 582; People v Acevedo, 210 AD3d 1106, 1107).

GENOVESI, J.P., WAN, LANDICINO and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

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