| People v Lowman |
| 2008 NY Slip Op 02345 [49 AD3d 1262] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rodney J.Lowman, Appellant. |
—[*1] Rodney J. Lowman, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered March28, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degree(two counts) and criminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of criminal possession of a controlled substance in the third degree (PenalLaw § 220.16 [1], [12]). Defendant failed to preserve for our review his contentions thatthe search warrant authorizing a search of his person was defective because it did not specificallyauthorize a body cavity search and that the manner in which the search was conducted wasunreasonable (see generally People v Martin, 50 NY2d 1029, 1031 [1980]; People vTutt, 38 NY2d 1011, 1012-1013 [1976]). In any event, those contentions are withoutmerit.
Contrary to the contention of defendant, the search of his person constituted a stripsearch and visual body cavity search rather than a full body cavity search (see People v Walker, 27 AD3d899, 901 [2006], lv denied 7 NY3d 764 [2006]). A strip search of a defendant isjustified if the police have " 'a reasonable suspicion that the arrestee is concealing weapons orother contraband based on the crime charged, the particular characteristics of the arrestee, and/orthe circumstances of the arrest' " (People v Kelley, 306 AD2d 699, 700 [2003], lvdenied 1 NY3d 598 [2004], quoting Weber v Dell, 804 F2d 796, 802 [1986], certdenied 483 US 1020 [1987]; seePeople v Maye, 43 AD3d 556, 558 [2007]; People v Taylor, 294 AD2d 825, 827[2002]). Here, the police had reasonable suspicion to justify the strip search and visual bodycavity search of defendant based on a confidential informant's statement to the police thatdefendant possessed "a substantial amount of crack cocaine" (see Walker, 27 AD3d at901; Taylor, 294 AD2d at 827), along with the fact that no drugs were discovered whenthe police conducted a pat-down search of defendant. The visual body cavity search wasconducted in a reasonable manner, i.e., in a holding cell after defendant had removed his clothingand the police had observed a substantial portion of the plastic bag containing crack cocainehanging outside defendant's rectum (see Maye, 43 AD3d at 558).[*2]We reject defendant's further contention that CountyCourt erred in its Molineux ruling. Evidence of the prior uncharged drug sale witnessedby the confidential informant shortly before defendant's arrest was admissible with respect to theissue of defendant's intent to sell drugs (see Maye, 43 AD3d at 558; People v Williams, 21 AD3d1401, 1402-1403 [2005], lv denied 5 NY3d 885 [2005]; People v Blunt, 280AD2d 956, 957 [2001], lv denied 96 NY2d 826 [2001]), as was the evidence thatdefendant possessed $325 at the time of his arrest (see People v Mosby, 237 AD2d 990[1997], lv denied 90 NY2d 861 [1997]; People v Gadsden, 192 AD2d 1103[1993], lv denied 82 NY2d 718 [1993]). We agree with the contention of defendant in hispro se supplemental brief that he was under arrest when he was stopped, handcuffed, placed in apolice car, transported to the police station and handcuffed to a ring attached to a wall while thepolice obtained a search warrant authorizing a search of his person (see People v Walker,244 AD2d 796, 797 [1997]; People v Quarles, 187 AD2d 200, 203 [1993], lv denied81 NY2d 1018 [1993]). We reject his contention, however, that the police lacked probablecause to arrest him, inasmuch as the People established that the confidential informant wasreliable and had a sufficient basis of knowledge (see Maye, 43 AD3d at 557; People v Carter, 39 AD3d 1226,1226-1227 [2007], lv denied 9 NY3d 863 [2007]; People v Singletary, 275 AD2d947 [2000], lv denied 96 NY2d 739 [2001]). Thus, the court properly refused to suppressthe physical evidence seized from defendant's person (see Maye, 43 AD3d at 557;Carter, 39 AD3d at 1227). Present—Martoche, J.P., Lunn, Fahey, Peradotto andPine, JJ.