SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

540 

KA 11-00941 

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RONNIE R. WALKER, DEFENDANT-APPELLANT. 

 

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. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Francis A. Affronti, J.), rendered February 22, 2011. The judgment

convicted defendant, upon his plea of guilty, of criminal possession

of a controlled substance in the fourth degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

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 AD3d 1200, 1201, lv denied 22 NY3d 1087). 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 AD3d 1344, 1345). 

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
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KA 11-00941 

not relevant to the suppression issues before the court (see generally

People v Colvin, 112 AD3d 1348, 1348-1349, lv denied 22 NY3d 1155;

People v Agostini, 84 AD3d 1716, 1717, lv denied 17 NY3d 857; People v

Rutley, 57 AD3d 1497, 1497, lv denied 12 NY3d 821). Thus, the

officers had probable cause to search defendant (see Cuffie, 109 AD3d

at 1201; see also People v Virges, 118 AD3d 1445, 1445-1446; People v

Contant, 90 AD3d 779, 780, lv denied 18 NY3d 956). Defendant’s

reliance on People v Howington (96 AD3d 1440, 1441), 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 AD3d at 1201 [internal

quotation marks omitted]; see People v Daniels, 117 AD3d 1573, 1574). 

Entered: May 8, 2015 Frances E. Cafarell

Clerk of the Court