| Matter of Demitrus B. |
| 2011 NY Slip Op 07986 [89 AD3d 1421] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Demitrus B., Appellant. Monroe County Attorney,Respondent. (Appeal No. 1.) |
—[*1] David Van Varick, County Attorney, Rochester (Timothy M. Lexvold of counsel), forpetitioner-respondent.
Appeal from an order of the Family Court, Monroe County (Joseph G. Nesser, J.), dated August19, 2010 in a proceeding pursuant to Family Court Act article 3. The order, inter alia, adjudicatedrespondent to be a juvenile delinquent.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent appeals from an order adjudicating him to be ajuvenile delinquent based upon his admission that he committed an act that, if committed by an adult,would constitute the crime of criminal possession of a controlled substance in the third degree (PenalLaw § 220.16 [1]). In appeal No. 2, respondent appeals from an order of protection issued onAugust 19, 2010. We note at the outset that respondent's contention that the order of protection isinvalid has been rendered moot inasmuch as the order has expired by its own terms (see Matter of Kristine Z. v Anthony C., 43AD3d 1284 [2007], lv denied 10 NY3d 705 [2008]; Matter of Muldrew vMixon, 237 AD2d 942 [1997]). We therefore dismiss the appeal from the order in appeal No. 2.The remainder of our decision herein thus concerns only appeal No. 1.
Contrary to respondent's contention, Family Court properly refused to suppress the tangibleevidence seized from respondent by police officers. Respondent's actions in meeting with two otherindividuals in a "chronic open air drug sale location" and immediately running into a store upon seeingthe officers approaching provided the officers with an " 'articulable reason' " for their initial encounterwith respondent (People v Rodriguez, 82AD3d 1614, 1615 [2011], lv denied 17 NY3d 800 [2011], quoting People v DeBour, 40 NY2d 210, 213 [1976]; see People v Reyes, 83 NY2d 945, 946 [1994],cert denied 513 US 991 [1994]; Matter of James R., 76 NY2d 825, 826 [1990]).Immediately after the initial encounter, the officers observed a surveillance video that showedrespondent in the store shoving a "clear plastic sandwich bag" down "the rear of his pants in betweenhis buttocks." When the officers asked him what he shoved down his pants, respondent told them thathe did not know what they were talking about. Based on the totality of the circumstances, including theofficers' observations and their training and experience regarding the common [*2]methods of drug packaging, the officers had probable cause to searchrespondent, resulting in the seizure of the bags of crack cocaine and money that were in his possession(see People v Alvarez, 100 NY2d 549, 550 [2003]; People v Febus, 11 AD3d 554, 556 [2004], lv dismissed 4NY3d 743 [2004]).
Respondent failed to preserve for our review his contention that the police improperly conducted abody cavity search without first obtaining a warrant to do so (see generally People v Gonzalez,55 NY2d 887, 888 [1982]; People vFuentes, 52 AD3d 1297, 1298 [2008], lv denied 11 NY3d 736 [2008]; People v Ricks, 49 AD3d 1265, 1266[2008], lv denied 10 NY3d 869 [2008], reconsideration denied 11 NY3d 740[2008]). In any event, that contention is without merit. After respondent refused the police officers'request to remove the plastic bag he had shoved down his pants, the officers pulled back respondent'spants and, without touching respondent or invading his anal cavity, retrieved a plastic bag protrudingfrom his buttocks. Thus, the officers conducted a strip search rather than a body cavity search, forwhich a warrant would have been required in the absence of exigent circumstances (see generally People v Hall, 10 NY3d303, 310-313 [2008], cert denied 555 US —, 129 S Ct 159 [2008]).
Respondent's contention that the testimony of a police officer regarding the surveillance videoshould have been precluded on the ground that petitioner was obligated to preserve the video is raisedfor the first time on appeal and is therefore not preserved for our review (see CPL 470.05 [2]).In any event, that contention is without merit because neither the police nor petitioner ever hadpossession or control of the video and thus petitioner had no obligation to preserve it (see People v Acosta, 74 AD3d 1213,1214 [2010], lv denied 15 NY3d 849 [2010]; People v Charlton, 69 AD3d 647 [2010], lv denied 14 NY3d799 [2010]; see generally People v James, 93 NY2d 620, 644 [1999]).Present—Scudder, P.J., Centra, Fahey, Peradotto and Lindley, JJ.