| People v Hunter |
| 2010 NY Slip Op 04066 [73 AD3d 1279] |
| May 13, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Grady J.Hunter, Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Cawley, Jr.,J.), rendered May 28, 2008, upon a verdict convicting defendant of the crime of criminalpossession of a controlled substance in the third degree.
Police officers stopped a car in which defendant was riding to execute a search warrant thatwas issued based upon information that he may possess narcotics. After the officers sawdefendant with his hands down the back of his pants, they transported him to the police stationand conducted a strip search. During that search, they retrieved a large amount of cash from hispocket and, after they saw a plastic bag protruding from defendant's rectum, defendant removedthat bag, which contained a white substance. The substance tested positive as crack cocaine. Ajury convicted defendant of the sole count of the indictment, criminal possession of a controlledsubstance in the third degree. Defendant appeals.
Defendant's argument concerning the timeliness of the charge is meritless. The police werenot required to arrest him immediately when they discovered the drugs, but could bring chargesat a later time (see CPL 30.10 [2] [b] [setting five-year statute of limitations forfelonies]). Defendant's arrest two weeks after the search did not violate any of his rights.
County Court properly denied defendant's suppression motion. "[A] strip search must [*2]be founded on a reasonable suspicion that [the suspect] isconcealing evidence underneath clothing and the search must be conducted in a reasonablemanner" (People v Hall, 10 NY3d303, 310-311 [2008], cert denied 555 US —, 129 S Ct 159 [2008]). A similarstandard applies to visual body cavity searches, requiring a specific and articulable "factual basissupporting a reasonable suspicion that [the suspect] has evidence concealed inside a body cavityand the search is conducted in a reasonable manner" (id. at 305). Here, the officers had asearch warrant authorizing them to search defendant's person because he was suspected ofpossessing narcotics.[FN*]Their observations of him fidgeting with his hands down the back of his pants, together withinformation from a confidential informant that defendant had a habit of carrying narcotics in hisrectum, supplied them with reasonable suspicion that defendant was concealing narcotics underhis clothing (see People v Clayton,57 AD3d 557, 558-559 [2008], lv denied 12 NY3d 852 [2009]). Removingdefendant from the street to conduct a private search at the police station, in a closed room withtwo male officers present, was reasonable. Once an officer noticed a plastic bag protruding fromdefendant's rectum, the reasonable suspicion was elevated to probable cause (see People vHall, 10 NY3d at 312). The police did not conduct a manual body cavity search, whichwould have required a warrant (see id. at 313); defendant voluntarily removed the bagfrom his rectum himself. Because the drugs were recovered without violating defendant's rights,the court properly denied his suppression motion.
The verdict was based upon legally sufficient evidence and was not against the weight of theevidence. Two officers testified that defendant had his hands down the back of his pants at thescene where he was detained. During a search of his person, they discovered $1,635 in cash anddefendant removed a bag from his rectum. That bag contained 7.34 grams of crack cocaine, asverified by the testimony of a forensic scientist. Defendant was not carrying any paraphernaliacustomarily used to ingest crack cocaine. An expert witness testified that drug dealers oftenconceal drugs in their rectums and carry large amounts of cash, while drug users are not likely tohide drugs in that manner or carry much money, but generally carry paraphernalia used to ingestthe drugs. The testimony, as well as the drugs and money admitted as physical evidence,constituted legally sufficient evidence to prove that defendant knowingly and unlawfullypossessed a narcotic with the intent to sell it (see Penal Law § 220.16 [1]; People v Patchen, 46 AD3d 1112,1113 [2007], lv denied 10 NY3d 814 [2008]; People v Wright, 283 AD2d 712,713-714 [2001], lv denied 96 NY2d 926 [2001]). Although the expert conceded thatmere drug users may not always carry paraphernalia with them, could carry large amounts ofcash and could secrete drugs in body cavities, the jury could reasonably accept his opinion thatthe possibility of all of these things happening was unlikely. Considering all of the proof, theverdict was not against the weight of the evidence (see People v Wright, 283 AD2d at714).
Defendant's challenge to the sufficiency of the evidence before the grand jury is foreclosedby his conviction after a jury trial, as the conviction is based upon legally sufficient evidence(see CPL 210.30 [6]; People vRivette, 20 AD3d 598, 600-601 [2005], lv denied 5 NY3d 809 [2005]).
Mercure, J.P., Peters, Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: On appeal, defendant does notcontest the validity of the search warrant.