People v. Feili

319 Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered April 6, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed. The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). Following a lawful traffic stop of a car in which defendant was a passenger, the officers had probable cause to search defendant after they detected the smell of marijuana emanating from the car (see People v Pierre, 8 AD3d 904, 905 [2004], lv denied 3 NY3d 710 [2004]). Furthermore, prior to the search, defendant admitted possessing marijuana. Additional factors justifying the search were that defendant acted suspiciously when directed out of the car and that his jacket pockets were bulging (see People v Hensen, 21 AD3d 172 [2005], lv denied 5 NY3d 828 [2005]). Defendant’s admission to the officers that he possessed marijuana was not subject to suppression for lack of Miranda warnings, because he made the admission during the course of a routine traffic stop and was not in custody for Miranda purposes (see People v Gutierrez, 13 AD3d 268, 269 [2004], lv denied 4 NY3d 831 [2005]). Defendant is not entitled, pursuant to the amelioration doctrine of People v Behlog (74 NY2d 237 [1989]), to the benefit of the reduced penalty contained in the Drug Law Reform Act (L 2004, ch 738), because the Legislature has expressly stated that the provision upon which defendant relies applies only to crimes committed after its effective date (People v Nelson, 21 AD3d 861 [2005]). Although defendant was sentenced after the effective date of the legislation, he committed the crime before that date. Concur—Tom, J.P., Gonzalez, Sweeny, Catterson and Malone, JJ.