| People v Butler |
| 2013 NY Slip Op 02913 [105 AD3d 1408] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWilliam J. Butler, Appellant. |
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Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered June 28, 2011. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentenceimposed and as modified the judgment is affirmed, and the matter is remitted to GeneseeCounty Court for the filing of a predicate felony offender statement and resentencing.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted criminal possession of a controlled substance in the third degree(Penal Law §§ 110.00, 220.16 [12]). Contrary to defendant's contention,County Court properly refused to suppress the physical evidence that the police observedand removed from defendant's clenched buttocks during a strip search. Defendantcontends that the search warrant permitting a search of defendant's residence and personfor a gun and narcotics did not authorize the systematic search of defendant, pursuant towhich the police required him to remove one article of clothing at a time. We reject thatcontention inasmuch as the search warrant specifically directed a search of defendant'sperson (cf. People vMothersell, 14 NY3d 358, 361 [2010]). Although no narcotics were found indefendant's clothing, the police observed a plastic bag protruding from his clenchedbuttocks during a visual inspection of his body. Contrary to defendant's furthercontention, the police did not conduct a "visual body cavity inspection," which "occurswhen a police officer looks at [a defendant's] anal or genital cavities, usually by asking[the defendant] to bend over" or squat (People v Hall, 10 NY3d 303, 306 [2008], cert denied555 US 938 [2008]; cf. Mothersell, 14 NY3d at 361; People v Colon, 80 AD3d440, 440 [2011]), nor did they conduct a "manual body cavity search," which"includes some degree of touching or probing of a body cavity that causes a physicalintrusion beyond the body's surface" (Hall, 10 NY3d at 306-307). Instead, thepolice removed the plastic bag containing crack cocaine "without touching [defendant]or invading his anal cavity" (Matter of Demitrus B., 89 AD3d 1421, 1422 [2011]).
Defendant failed to preserve for our review his contention that the People failed tocomply with the procedural requirements of CPL 400.21 when he was sentenced as asecond felony offender (seePeople v Butler, 96 AD3d 1367, 1368 [2012], lv denied 20 NY3d 931[2012]). We [*2]nevertheless exercise our power to reachthat contention as a matter of discretion in the interest of justice (see CPL 470.15[3] [c]), and conclude that the record does not reflect that the People filed a statement asrequired by CPL 400.21 (2), or that defendant admitted the prior felony (cf.Butler, 96 AD3d at 1368). We therefore modify the judgment by vacating thesentence, and we remit the matter to County Court for the filing of a predicate felonyoffender statement pursuant to CPL 400.21 prior to resentencing (see People v Carrasquillo, 96AD3d 1369, 1369 [2012]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Fahey, Sconiers, Valentino and Martoche, JJ.