People v. Ventura-Almonte

Appellate Division of the Supreme Court of New York

People v. Ventura-Almonte

78 A.D.3d 524, 911 N.Y.S.2d 53

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

DecidedNovember 18, 2010

StatusPublished

This text of 78 A.D.3d 524 (People v. Ventura-Almonte) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Ventura-Almonte, 78 A.D.3d 524, 911 N.Y.S.2d 53 (N.Y. Ct. App. 2010).

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Opinion

Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O., at suppression hearing; Maxwell Wiley, J., at suppression motion, plea and sentence), rendered November 18, [525]*5252009, convicting defendant of criminal possession of marijuana in the second degree, and sentencing him to a term of five years probation, unanimously affirmed.

The court properly denied defendant’s suppression motion. The hearing evidence established that the officer’s decision to search defendant’s car during a lawful traffic stop was based, at least in part, on the smell of marijuana emanating from the car. That factor, standing alone, was sufficient to provide probable cause for the search (see e.g. People v Badger, 52 AD3d 231 [2008], lv denied 10 NY3d 955 [2008]).

We reject defendant’s contention that, because of the alleged insufficiency of the People’s response to his suppression motion, he was entitled to have the motion granted summarily. In opposing defendant’s motion to suppress the marijuana recovered from his car, the People “ submitt [ed] that such evidence was lawfully obtained and den[ied] all allegations to the contrary.” This was sufficient to meet their burden of “refusing] to concede the truth of facts alleged by defendant” (People v Weaver, 49 NY2d 1012, 1013 [1980]), and the court properly ordered a hearing. Concur — Tom, J.P., Andrias, Nardelli, Acosta and DeGrasse, JJ.

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Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O., at suppression hearing; Maxwell Wiley, J., at suppression motion, plea and sentence), rendered November 18, [525]*5252009, convicting defendant of criminal possession of marijuana in the second degree, and sentencing him to a term of five years probation, unanimously affirmed.

The court properly denied defendant’s suppression motion. The hearing evidence established that the officer’s decision to search defendant’s car during a lawful traffic stop was based, at least in part, on the smell of marijuana emanating from the car. That factor, standing alone, was sufficient to provide probable cause for the search (see e.g. People v Badger, 52 AD3d 231 [2008], lv denied 10 NY3d 955 [2008]).

We reject defendant’s contention that, because of the alleged insufficiency of the People’s response to his suppression motion, he was entitled to have the motion granted summarily. In opposing defendant’s motion to suppress the marijuana recovered from his car, the People “ submitt [ed] that such evidence was lawfully obtained and den[ied] all allegations to the contrary.” This was sufficient to meet their burden of “refusing] to concede the truth of facts alleged by defendant” (People v Weaver, 49 NY2d 1012, 1013 [1980]), and the court properly ordered a hearing. Concur — Tom, J.P., Andrias, Nardelli, Acosta and DeGrasse, JJ.

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78 A.D.3d 524, 911 N.Y.S.2d 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ventura-almonte-nyappdiv-2010.

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