People v. Pastrana

206 N.Y.S.3d 525

230 N.E.3d 447

41 N.Y.3d 23

The PEOPLE of the State of New York, Respondent,

v.Pablo PASTRANA, Appellant.

Court of Appeals of New York.

Decided November 21, 2023

Jenay Nurse Guilford, Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Nicole Neckles, Yael V. Levy, David M. Cohn and Rafael Curbelo of counsel), for respondent.

Letitia James, Attorney General, New York City (Nikki Kowalski, Andrew W. Amend, Barbara D. Underwood, Jodi A. Danzig and Anthony Raduazo of counsel), in her statutory capacity under Executive Law § 71.

OPINION OF THE COURT

TROUTMAN, J.

₂₆In June of 2015, defendant was driving a vehicle that was stopped at a roadblock set up by police on a bridge leading ₂₇from Manhattan into the Bronx on the same day as the annual Puerto Rican Day Parade. After officers smelled marijuana in the car, they conducted a search, during which they recovered a loaded firearm. In 2018, defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the second degree, criminal possession of marijuana in the fifth degree, and unlawful possession of marijuana. The Appellate Division affirmed (205 A.D.3d 461, 168 N.Y.S.3d 53 [1st Dept. 2022]), and a Judge of this Court granted defendant leave to appeal (38 N.Y.3d 1135, 172 NY.S.3d 864, 193 N.E.3d 529 [2022]). We reject defendant’s contentions on this appeal as without merit or unpreserved.

I.

Defendant first contends that the People did not meet their burden at the suppression hearing to demonstrate the constitutional validity of the roadblock pursuant to which his vehicle was stopped. We conclude that the lower courts properly determined that the People met their burden.

At the suppression hearing, the People offered the testimony of a detective who was responsible for questioning the driver of vehicles that were stopped pursuant to the roadblock. That detective testified that he was assigned to conduct a vehicle checkpoint on the bridge in question, and that the purpose of the checkpoint was vehicle safety. To that end, the detective asked each driver he approached to produce their driver’s license, insurance, and registration. The detective would also check for "improper inspections, equipment, [and] seat belts." The purpose of the roadblock was not specifically to check for drunk drivers, but the detective testified that if police found an intoxicated driver, they would take appropriate action. The checkpoint was conducted during daylight hours and marked by cones and two vans.

The detective further testified that the procedure for the checkpoint was to stop every third car that passed through. The detective was not responsible for counting cars and directing them to pull over, but he testified that defendant’s car was pulled over pursuant to this established procedure. The detective asked defendant to roll down the windows in the vehicle, and when defendant complied, there was a strong odor of marijuana coming from the vehicle. The detective testified that he observed marijuana in plain view in the car. The detective then commenced a search of the car, and after noticing a strong odor of marijuana near the glove box, he opened it, finding a ₂₈larger quantity of marijuana and a loaded firearm. Defendant was then arrested.

[1] The detective’s testimony satisfied the People’s burden to demonstrate a permissible primary programmatic purpose for the roadblock, that it was maintained "in accordance with a uniform procedure which afforded little discretion to operating personnel," and that the checkpoint was conducted with fair warning to motorists and with precautions regarding motorist safety (People v. Scott, 63 N.Y.2d 518, 526, 483 N.Y.S.2d 649, 473 N.E.2d 1 [1984]; see generally City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 [2000]). That testimony established that the primary purpose of the checkpoint was roadway safety, not general crime control (see Indianapolis, 531 U.S. at 44, 121 S.Ct. 447; People v. Jackson, 99 N.Y.2d 125, 131–132, 752 N.Y.S.2d 271, 782 N.E.2d 67 [2002]; Matter of Muhammad F., 94 N.Y.2d 136, 145–146, 700 N.Y.S.2d 77, 722 N.E.2d 45 [1999], cert denied 531 U.S. 1044, 121 S.Ct. 643, 148 L.Ed.2d 549 [2000]). It further established that the checkpoint was maintained in accordance with a uniform procedure that gave little discretion to operating personnel, i.e., every third car was. stopped (see Scott, 63 N.Y.2d at 526, 483 N.Y.S.2d 649, 473 N.E.2d 1). Finally, the detective’s testimony established that the roadblock was conducted with adequate precautions that gave fair warning to motorists (cf. Muhammad F., 94 N.Y.2d at 147, 700 N.Y.S.2d 77, 722 N.E.2d 45).

[2] Defendant’s challenge to the validity of the checkpoint is, in large part, essentially a challenge to the credibility of the detective’s testimony. But this Court has no power to revisit the factual finding of the suppression court that the detective’s testimony was credible (see People v. Concepcion, 38 N.Y.2d 211, 213, 379 N.Y.S.2d 399, 341 N.E.2d 823 [1975]). Moreover, to the extent defendant contends that the decision to set up a roadblock was discriminatory, that contention is not supported by the record. The roadblock was set up on the day of the National Puerto Rican Day Parade, and the record demonstrates that the post-parade traffic was particularly heavy. Thus, the reasonable inference to be drawn from the detective’s testimony is that the roadway safety checkpoint was chosen for that date and location because of the large volume of traffic that would be crossing the bridge.

The People’s evidentiary showing as to the authorization for the roadblock certainly could have been more robust (see e.g. Scott, 63 N.Y.2d at 523, 483 N.Y.S.2d 649, 473 N.E.2d 1 [written documentation regarding authorization for roadblock]; Jackson, 99 N.Y.2d at 128, 752 N.Y.S.2d 271, 782 N.E.2d 67 [testimony from senior officer responsible for initiating the roadblock]). Nevertheless, we conclude that the detective’s testimony and ₂₉the reasonable inferences to be drawn therefrom were sufficient, albeit barely, to satisfy the People’s burden.

II.

[3] Defendant further contends that the Marihuana Regulation and Taxation Act (MRTA) should be applied retroactively to his case to render the search of his vehicle unlawful. The Appellate Division has rejected that contention (see e.g. Peo- ple v. Boyd, 206 A.D.3d 1350, 1354, 170 N.Y.S.3d 681 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 47, 194 N.E.3d 754 [2022]; People v. Babadzhanov, 204 A.D.3d 685, 686–687, 166 N.Y.S.3d 249 [2d Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 432, 191 N.E.3d 384 [2022]; People v. Vaughn, 203 A.D.3d 1729, 1730, 165 N.Y.S.3d 223 [4th Dept. 2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 228, 189 N.E.3d 335 [2022]). We agree with the Appellate Division and therefore conclude that defendant’s contention is without merit.

The MRTA, which became law in 2021 (see L 2021, ch 92), added Penal Law § 222.05, which provides that with certain exceptions not relevant here, the odor of cannabis or burnt cannabis, or the possession of cannabis in the amounts authorized by the MRTA, shall not be the basis for a "finding or determination of reasonable cause to believe a crime has been committed" (id. § 222.05[3]). In short, Penal Law § 222.05(3) provides that the odor of marijuana or possession of marijuana in legally authorized amounts can no longer be the basis for a police search.

Penal Law § 222.05 became effective on March 31, 2021, nearly six years after the search of defendant’s vehicle was conducted. If the search of defendant’s vehicle had been conducted after that effective date, it would not be valid under the MRTA, given that it was based solely upon the odor of cannabis, Defendant contends, however, that this provision of the MRTA should be applied retroactively to invalidate searches that occurred before the effective date of the statute.

[4] " ‘It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it’ " (People v. Galindo, 38 N.Y.3d 199, 207, 171 N.Y.S.3d 865, 191 N.E.3d 1136 [2022], quoting Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 584, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998]). Nothing in the text or legislative history of the MRTA requires or supports the conclusion that the legislature intended for the newly-enacted Penal Law § 222.05 to apply retroactively to invalidate searches that were conducted before the effective ₃₀date of the statute.^* The fact that Penal Law § 222.05 was to take effect "immediately" merely supports the conclusion that as of March 31, 2021,. law enforcement could no longer conduct searches based solely on the odor of cannabis. "[T]he date that legislation is to take effect is a separate question from whether the statute should apply to claims and rights then in existence," and the legislature’s expression that a statute is to take effect immediately is equivocal in a retroactivity analysis (Majewski, 91 N.Y.2d at 583, 673 N.Y.S.2d 966, 696 N.E.2d 978).

Importantly, the legislature included provisions in the MRTA intended to remedy past discriminatory practices regarding the policing of marijuana, including provisions regarding vacatur of prior marijua- na-related convictions (see CPL 440.46-a). Thus, when the legislature intended the MRTA to impact convictions that became final before the law’s effective date, it provided express provisions to that effect. There is no similar expression of legislative intent with respect to Penal Law § 222.05. Moreover, applying the MRTA retroactively to invalidate searches that have already occurred would not deter any police misconduct because, as defendant concedes, at the time police searched his car in 2015, a search...