| People v Mothersell |
| 2009 NY Slip Op 00846 [59 AD3d 995] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RobertMothersell, Appellant. |
—[*1] Robert Mothersell, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedOctober 27, 2006. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his guilty plea, of criminalpossession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]),defendant contends that County Court erred in refusing to suppress a plastic bag containing crackcocaine recovered from his person by a police officer pursuant to a search warrant. We rejectdefendant's contention that the search warrant was insufficiently specific because it permitted thesearch of "any and all person(s) present" at the apartment designated in the warrant. "[S]earchwarrants that direct a search of a particular place . . . 'may also direct a search ofany person present thereat or therein' . . . , as long as the search warrant applicationestablishes probable cause for the search" (People v Ming, 35 AD3d 962, 965 [2006], lv denied 8NY3d 883 [2007]). Contrary to defendant's further contention, the warrant applicationestablished probable cause to believe that the apartment was being used for the sale of controlledsubstances and "that anyone present was involved in the ongoing illegal activity" (People vNeish, 232 AD2d 744, 746 [1996], lv denied 89 NY2d 927 [1996]; see People vWilliams, 284 AD2d 564, 565 [2001], lv denied 96 NY2d 909 [2001]).
The evidence at the suppression hearing supports the court's determination that the officerswere justified in conducting a strip search of defendant (see Williams, 284 AD2d at565). In addition, "[d]espite defendant's attempts to characterize this search as a body cavitysearch, the record fails to support this argument; the bag was visibly sticking out from between[defendant's] buttocks, [and was] not inserted into a body cavity such as defendant's rectum" (People v Walker, 27 AD3d 899,901 [2006], lv denied 7 NY3d 764 [2006]). Finally, the contention of defendant that hewas denied effective assistance of [*2]counsel is not reviewableon direct appeal to the extent that it concerns matters outside the record on appeal (see People v Joyner, 19 AD3d1129 [2005]). Defendant's contention concerning the alleged denial of effective assistance ofcounsel does not otherwise survive the guilty plea because "[t]here is no showing that the pleabargaining process was infected by any allegedly ineffective assistance or that defendant enteredthe plea because of his attorney['s] allegedly poor performance" (People v Burke, 256AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]). Present—Smith, J.P., Centra,Fahey, Green and Pine, JJ.