Calendar Date: September 13, 2017
B. Johnson, East Greenbush, for appellant.
David Soares, District Attorney, Albany (Vincent Stark of
counsel), for respondent.
Before: Garry, J.P., Egan Jr., Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County
(Herrick, J.), rendered September 15, 2014, convicting
defendant upon his plea of guilty of the crimes of attempted
criminal possession of a weapon in the second degree and
assault in the second degree.
was charged in two separate single-count indictments with
assault in the first degree and criminal possession of a
weapon in the second degree. With respect to the assault
charge, County Court, after a suppression hearing, denied
defendant's motion to suppress certain identification
evidence and statements made by him to law enforcement
officials. With respect to the criminal possession charge,
County Court, after a separate suppression hearing, denied
defendant's motion to suppress the firearm and ammunition
recovered by police officers. In satisfaction of both
indictments, defendant pleaded guilty to assault in the
second degree and attempted criminal possession of a weapon
in the second degree. County Court thereafter sentenced
defendant on each conviction to a prison term of five years,
to be followed by five years of postrelease supervision. The
prison terms were ordered to run consecutively. Defendant
appeals. We affirm.
first to defendant's challenge to County Court's
order denying his motion to suppress certain statements and
identification evidence in connection with the assault
conviction, we conclude that defendant's valid waiver of
appeal precludes such challenge. The record reveals that
County Court explained to defendant that his right to appeal
was "separate and apart" from those trial-related
rights he was forfeiting upon his guilty plea. Defendant
executed a written waiver of appeal and County Court
confirmed that defendant read and understood its contents.
Accordingly, we find that the appeal waiver was valid
(see People v McRae 150 A.D.3d 1328, 1329 ,
lv denied 29 N.Y.3d 1093');">29 N.Y.3d 1093 ; People v
Mahon, 148 A.D.3d 1303, 1303 ; People v
Taylor, 144 A.D.3d 1317, 1318 , lvs
denied 28 N.Y.3d 1144, 1151 ). To that end,
defendant's valid appeal waiver forecloses his challenge
to County Court's adverse suppression ruling (see
People v Kemp, 94 N.Y.2d 831, 833 ; People v
Stone, 105 A.D.3d 1094, 1094 ).
defendant's challenge to County Court's suppression
ruling related to the attempted criminal possession of a
weapon conviction, we initially note that defendant did not
waive his right to appeal in connection with this conviction
and, therefore, such challenge survives his guilty plea
(see People v King, 137 A.D.3d 1424, 1425 ,
lv denied 27 N.Y.3d 1070');">27 N.Y.3d 1070 ). We nevertheless
conclude that it is without merit. "It is fundamental
that probable cause exists for a traffic stop if an officer
observes a defendant committing a traffic violation"
(People v Williams, 132 A.D.3d 1155, 1155 
[internal quotation marks and citation omitted], lv
denied 27 N.Y.3d 1157');">27 N.Y.3d 1157 ; see People v
Wynn, 149 A.D.3d 1252, 1254 , lv denied
29 N.Y.3d 1136');">29 N.Y.3d 1136 ; People v Rasul, 121 A.D.3d
1413, 1415 ). At the suppression hearing, the officer
who pulled defendant over testified that he was behind
defendant's vehicle and saw it "weaving in and out
of the lane." In particular, the officer observed
defendant's vehicle "mov[e] from the lane all the
way across the double yellow line, back all the way across
over the fog line and doing this several times." When
asked how far defendant crossed over the double yellow line,
the officer responded, "approximately a foot, maybe two
feet." The officer believed that, based on such
movements, defendant "appeared to either be on the cell
phone or impaired." County Court credited the
officer's testimony, and we accord great deference to
County Court's factual findings and credibility
determinations (see People v Horge, 80 A.D.3d 1074,
1074 ). Based on the foregoing, we find that the
officer had a reasonable basis to stop defendant's
vehicle (see Vehicle and Traffic Law § 1128
[a]; People v Ogden, 250 A.D.2d 1001, 1001 ),
and that the denial of the motion to suppress was proper.
reject defendant's assertion that he was unreasonably
detained following the initial traffic stop. The officer
testified that after stopping defendant, he ran a computer
check of defendant's license and registration and learned
that the registration was suspended due to a lapse in
automobile insurance coverage . The officer questioned
defendant about this lapse and defendant explained that he
was aware of the problem and that the vehicle was actually
insured. The officer gave defendant an opportunity to call an
insurance agent to verify whether there was valid insurance.
The officer testified that he asked defendant to exit the
vehicle so that he could hear defendant's conversation
with the insurance agent. The officer stated that, as this
telephone conversation took place, he was standing "down
wind" from defendant and detected an odor of marihuana.
In light of the officer's testimony that he was familiar
with the smell of marihuana and was trained to detect it, we
find that, upon detecting the odor of marihuana, the officer
had probable cause to continue the seizure of defendant for
further investigation. To that end, taking into account that
the officer gave defendant a chance to explain the issue of
the lapsed insurance, we conclude that defendant's
detention following the initial traffic stop was not
prolonged beyond what was reasonable under the circumstances
(see People v Whalen, 101 A.D.3d 1167, 1167-1168
, lv denied 20 N.Y.3d 1105');">20 N.Y.3d 1105 ; People
v Carter, 60 A.D.3d 1103, 1104-1105 , lv
denied 12 N.Y.3d 924');">12 N.Y.3d 924 ; People v Ross, 228
A.D.2d 718, 718-719 , lv denied 88 N.Y.2d 993');">88 N.Y.2d 993
). Defendant's remaining argument has been examined
and determined to be without merit.
J.P., Egan Jr., Devine and Rumsey, JJ., concur.
that the judgment is affirmed.