SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

679 

KA 11-02514 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, 

V MEMORANDUM AND ORDER

JAMELL HOWINGTON, DEFENDANT-RESPONDENT.

 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.

AZZARELLI OF COUNSEL), FOR APPELLANT. 

JAMES K. WEEKS, FAYETTEVILLE, FOR DEFENDANT-RESPONDENT.

Appeal from an amended order of the Supreme Court, Onondaga

County (John J. Brunetti, A.J.), dated October 29, 2010. The amended

order granted the motion of defendant to suppress certain physical

evidence. 

It is hereby ORDERED that the amended order so appealed from is

unanimously affirmed. 

Memorandum: Having filed the requisite statement pursuant to CPL

450.50, the People appeal from an amended order granting defendant’s

motion to suppress the physical evidence seized by the police after a

traffic stop. A Syracuse police officer testified at the suppression

hearing that he stopped a vehicle operated by defendant after

observing several traffic infractions, and that he detected the odor

of unburned marihuana when he approached the vehicle. The hearing

testimony further established, however, that the only marihuana found

in the vehicle was in a closed plastic bag inside a pocket in

defendant’s clothing. In addition, the evidence at the suppression

hearing established that defendant drove the vehicle with the windows

open for several blocks prior to the stop, and that they remained open

after the vehicle was stopped by the police. Supreme Court expressly

stated that it did “not credit the testimony that the [odor] of raw

mari[h]uana was present,” and the court thus concluded that the

officers did not have probable cause to arrest defendant for

possession of marihuana. The court therefore concluded that the

officers did not have the right to search defendant incident to an

arrest for possession of marihuana and granted defendant’s motion

seeking to suppress the items discovered during the search, including

the marihuana, money and other drugs possessed by defendant.

Initially, we note that the People raised an alternative basis

for the search at the suppression hearing, but they have “failed to

address in their brief on appeal any issues with respect to [that
-2- 679 

KA 11-02514 

alternative basis], and thus they are deemed to have abandoned any

contentions with respect thereto” (People v Hunter, 92 AD3d 1277,

1279; see People v Sorrells, 58 AD3d 1080, 1080 n, lv denied 12 NY3d

921). Rather, the People contend on appeal that the court erred in

suppressing the evidence because the odor of the unburned marihuana

provided probable cause for the search, and that the court erred in

refusing to credit the officer’s testimony that he smelled the

marihuana. “It is well settled that the suppression court’s

credibility determinations and choice between conflicting inferences

to be drawn from the proof are granted deference and will not be

disturbed unless unsupported by the record” (People v Esquerdo, 71

AD3d 1424, 1424, lv denied 14 NY3d 887 [internal quotation marks

omitted]; see People v McAvoy, 70 AD3d 1467, 1467, lv denied 14 NY3d

890; People v Layboult, 227 AD2d 773, 775). Here, the court’s

determination that the officer could not have smelled the unburned

marihuana is supported by the evidence in the record and was based

solely upon the court’s assessment of the credibility of the witnesses

at the suppression hearing, and we perceive no basis to disturb that

determination (see People v Vaughan, 48 AD3d 1069, 1071, lv denied 10

NY3d 845, cert denied 555 US 910; see generally People v Gerena, 49

AD3d 1204, 1205, lv denied 10 NY3d 958). In view of our conclusion

that the court’s determination that the officer could not have

detected the odor of unburned marihuana has support in the record and

should not be disturbed, we do not address the further contention of

the People that such odor, combined with defendant’s “furtive

movements,” justified the search. 

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court