People v. Lee

*627Judgment, Supreme Court, New York County (Melissa C. Jackson, J., at suppression hearing; Jill Konviser, J., at plea and sentencing), rendered August 7, 2013, convicting defendant of forgery in the second degree (six counts), identity theft in the first degree (six counts), criminal possession of a forged instrument in the second degree (two counts), criminal possession of stolen property in the fourth degree (eight counts), and identity theft in the third degree (seven counts), and sentencing him, as a second felony offender, to an aggregate term of 3 to 6 years, affirmed.

The testimony at the suppression hearing, which was credited by the hearing court, established that the police had probable cause to arrest defendant for unlawful possession of marijuana. The police witnesses testified that there was a strong odor of marijuana emanating from defendant’s car when defendant opened the car door, and the officers observed a partially burned marijuana cigarette, in plain view, on the center console between the front seats of the car (see People v Singleton, 139 AD3d 208, 215 [1st Dept 2016]; People v Smith, 66 AD3d 514 [1st Dept 2009], lv denied 13 NY3d 942 [2010]). Defendant argues that the police testimony was incredible, particularly because the officers already were planning to arrest him for crimes involving possession of stolen property. Generally, credibility determinations are left to the hearing court, and the findings of fact by the hearing court are entitled to great deference on appeal (People v Prochilo, 41 NY2d 759, 761 [1977]; People v Edwards, 250 AD2d 442, 442-443 [1st Dept 1998], lv denied 92 NY2d 896 [1998]). Here, we see no reason to disturb the credibility finding of the hearing court. It is not implausible that the officers would find a partially burnt marijuana cigarette in defendant’s car, and the record contains no basis to conclude that the officers manufactured this testimony.1

The critical issue in this case is whether the officers’ search of the car, which was conducted back at the police district headquarters and not at the arrest location, was a legitimate inventory search. We conclude that it was.2 The People introduced a copy of the relevant patrol guide section outlining *628the procedures for inventory searches. Everything was removed from the car, under the direction of a sergeant, and even items such as nail clippers were vouchered. A contemporaneous list was made of the items that were removed, and the list was introduced at the hearing. Copies of property clerk invoices also were admitted in evidence at the hearing. The testimony at the hearing established that the officers did not exercise discretion in removing items from the car, and that the search was not a ruse to recover incriminating evidence3 (see People v Padilla, 21 NY3d 268 [2013], cert denied 571 US —, 134 S Ct 325 [2013]).

Contrary to the argument of the dissent, the police complied with the third requirement of the New York Police Department (NYPD) Patrol Guide’s inventory search guidelines. This section requires the officers to remove all valuables from the vehicle and voucher them on a “PROPERTY CLERK INVOICE” (NYPD Patrol Guide Procedure No. 218-13 [3]). The officers testified at the hearing that as the items were removed, they documented what was taken out of the car. This is one of the hallmarks of an inventory search. The fact that it was not on an “inventory” form does not undermine the evidentiary value of the list, nor alter the conclusion that the procedures employed effectively limited the discretion of the officers conducting the search (see People v Black, 250 AD2d 494 [1st Dept 1998], lv denied 92 NY2d 922 [1998]). Moreover, the Patrol Guide directs that valuables be listed on a property clerk invoice, and those invoices are in the hearing record.

The hearing court heard the testimony and determined that the search was lawful. There is nothing in the record that would support overturning that determination (see Padilla at 272). The minor discrepancies between the handwritten list and the property clerk invoices do not call into question the credibility of the officers who testified at the hearing (see id. at 272-273 [“The fact that the officer did not follow written police procedure when he gave some of the contents of the vehicle to defendant’s sister without itemizing that property, did not invalidate the search”]; see also People v Walker, 20 NY3d 122, *629126-127 [2012] [upholding an inventory search despite several deficiencies in the form and descriptions of items]; Black at 494, citing People v Salazar, 225 AD2d 804, 805 [2d Dept 1996], lv denied 88 NY2d 969 [1996]).

The dissent cites People v Galak (80 NY2d 715, 720-721 [1993]) to show that an inventory list created five hours after the search renders the list invalid and prevents a finding of a valid inventory search. However, in the instant case, the handwritten inventory list was made at the same time the items were removed and the procedure created a usable inventory. Galak is distinguishable because the list was created five hours after the search, while here, the record contains no information about when the typewritten property clerk invoices were created as opposed to when they were printed.

The officers’ decision to delay defendant’s arrest until he had opened his car is not evidence that the arrest was merely a pretext to search the car. As explained above, when defendant returned to his car and opened the door, the officers smelled marijuana and noticed a marijuana cigarette, establishing probable cause to arrest defendant for unlawful possession of marijuana. It is important to note that both defendant, and the woman who was with him, were arrested, and therefore no one was available, except the police, to take possession of the car. The officer who conducted the search initially testified that it was “an inventory search,” and that the purpose was “to safeguard all the property in the vehicle.” In addition, the sergeant explained that there was an inventory search, and that they took anything of value out of the car. Although he also referred to it as a search for evidence, the procedures that were followed were more consistent with an inventory search than anything else, and support the hearing court’s conclusion in this case. An inventory search is not invalid merely because incriminating evidence is recovered so long as that was not the primary purpose of the search (see People v Johnson, 1 NY3d 252, 256 [2003]).

Concur — Tom, J.P., Friedman, Richter and Kapnick, JJ.

. We need not decide whether the evidence adduced at the hearing, including the copy of the wanted poster for subway related larcenies, was sufficient to provide the arresting officer with probable cause independent of the observation of the marijuana cigarette.

. Although the dissent focuses on the officers’ motivation in following defendant, this background information does not establish whether the officers *628had probable cause to arrest defendant when he was actually detained (see generally People v Wright, 98 NY2d 657, 658-659 [2002], citing People v Robinson, 97 NY2d 341, 349 [2001] [stating that “[i]n making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant”]).

. In light of our holding that this was a valid inventory search, we need not discuss the People’s alternative argument that the officers had a right to search the car for narcotics or for stolen property.