Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ), defendant contends that he was unlawfully searched after a traffic stop in the City of Rochester. Specifically, defendant contends that the police officer's pat-down search was not justified based either on safety concerns or on the odor of unburned marihuana. We reject that contention, inasmuch as we conclude that it was justified based on the odor of unburned marihuana. “[I]t is well established that ‘[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause’ to search a vehicle and its occupants” ( People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383, lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975). Here, the police officers testified regarding their training on the identification of marihuana and, on appeal, defendant does not challenge their training but instead challenges only their credibility. We discern no basis to disturb the court's credibility assessments of the officers inasmuch as “ ‘[n]othing about the officer[s'] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self contradictory’ ” ( People v. Williams, 115 A.D.3d 1344, 1345, 982 N.Y.S.2d 675). Furthermore, the court did not abuse its discretion in curtailing defense counsel's cross-examination of the officers because defense counsel's attempts to establish certain “ contradictions in time” were not relevant to the suppression issues before the court ( see generally People v. Colvin, 112 A.D.3d 1348, 1348–1349, 977 N.Y.S.2d 527, lv. denied 22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127; People v. Agostini, 84 A.D.3d 1716, 1717, 922 N.Y.S.2d 724, lv. denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803; People v. Rutley, 57 A.D.3d 1497, 1497, 869 N.Y.S.2d 842, lv. denied 12 N.Y.3d 821, 881 N.Y.S.2d 28, 908 N.E.2d 936). Thus, the officers had probable cause to search defendant ( see Cuffie, 109 A.D.3d at 1201, 972 N.Y.S.2d 383; see also People v. Virges, 118 A.D.3d 1445, 1445–1446, 987 N.Y.S.2d 783; People v. Contant, 90 A.D.3d 779, 780, 935 N.Y.S.2d 35, lv. denied 18 N.Y.3d 956, 944 N.Y.S.2d 485, 967 N.E.2d 710). Defendant's reliance on People v. Howington, 96 A.D.3d 1440, 1441, 946 N.Y.S.2d 368, a People's appeal, is misplaced because in that case we merely upheld the suppression court's credibility determination that the officer could not have detected the odor of unburned marihuana. Here, we uphold the court's credibility determination otherwise.
Contrary to defendant's final contention, he is not entitled to a new hearing. His assertion that the court erred in prohibiting him from establishing that the subject stop was pretextual is without merit because “a traffic stop is lawful where, as here, a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, ... [regardless of] the primary motivation of the officer” ( Cuffie, 109 A.D.3d at 1201, 972 N.Y.S.2d 383 [internal quotation marks omitted]; see People v. Daniels, 117 A.D.3d 1573, 1574, 986 N.Y.S.2d 731).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.