| People v Cole |
| 2011 NY Slip Op 05730 [85 AD3d 1198] |
| June 28, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ronnie Cole, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Dutchess County (Hayes,J.), rendered October 22, 2008, convicting him of attempted promoting prison contraband in thefirst degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
When a defendant moves to suppress physical evidence, the People have the burden of goingforward and demonstrating the legality of the police conduct (see People v Whitehurst,25 NY2d 389, 391 [1969]; People vSpann, 82 AD3d 1013, 1014 [2011]). The defendant, however, bears the ultimateburden of proving, by a preponderance of evidence, that the evidence should not be used againsthim (see People v Berrios, 28 NY2d 361, 367 [1971]; People v Spann, 82 AD3dat 1014). The hearing court's determination as to witness credibility is accorded great weight onappeal, as it saw and heard the witnesses, and its determination will not be disturbed unlessclearly unsupported by the evidence (see People v Prochilo, 41 NY2d 759, 761 [1977];People v Barley, 82 AD3d 996,997 [2011]).
Prison inmates do not forfeit all constitutional protections by virtue of their convictions andincarcerations (see Bell v Wolfish, 441 US 520, 545 [1979]). However, in reviewingchallenges to prison regulations and conditions, "[c]ourts must be sensitive to the State's interestin punishment, deterrence, and rehabilitation, as well as the need for deference to experiencedand expert prison administrators faced with the difficult and dangerous task of housing largenumbers of convicted criminals" (Brown v Plata, 563 US —, —, 131 S Ct1910, 1928 [2011]; see People vMcKanney, 56 AD3d 1049, 1050 [2008]). Among other things, prison officials have theresponsibility of preventing the transfer and possession of contraband, a "formidable task[ ]"conducted in the "volatile setting of our correctional institutions [that] require[ ] . . .prison officials [to] be vested with broad discretion in their formulation of security-relatedpolicies" (Matter of Rivera v Smith, 63 NY2d 501, 513 [1984]). As the United StatesSupreme Court has observed, prison administrators "must be ever alert to attempts to introducedrugs and other contraband into the premises, which, we can judicially notice, is one of the mostperplexing problems of prisons today" (Hudson v Palmer, 468 [*2]US 517, 527 [1984]).
Here, contrary to the defendant's contention, the People met their burden of demonstratingthe legality of the corrections officers' conduct with evidence that the officers had an articulablebasis, i.e., an "objective, credible reason" (People v Ocasio, 85 NY2d 982, 985 [1995]),to conduct a "pat frisk" of the defendant, as he matched a specific description provided by aconfidential informant of an individual who was smuggling drugs into the prison (see Hudsonv Palmer, 468 US at 527; Matter of Rivera v Smith, 63 NY2d at 512-513). Further,the discovery of an unusual bulge in the defendant's groin area gave rise to probable cause to stripsearch the defendant (see People v Smith, 182 AD2d 786, 787 [1992]; People vEnnis, 158 AD2d 467 [1990]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Belen, Sgroi and Miller, JJ., concur.