| People v Facen |
| 2014 NY Slip Op 03086 [117 AD3d 1463] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDorian Facen, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David R. Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered March 16, 2012. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty,of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [5]), defendant contends that all of the physical evidence seized bythe police, as well as his statements to the police, should have been suppressed becausethey were obtained as the result of an improper stop of the vehicle in which he wasriding. Defendant failed to raise that contention in his motion papers or before thesuppression court, and thus it is not preserved for our review (see generally People v Fuentes,52 AD3d 1297, 1298 [2008], lv denied 11 NY3d 736 [2008]; People v Ricks, 49 AD3d1265, 1266 [2008], lv denied 10 NY3d 869 [2008], reconsiderationdenied 11 NY3d 740 [2008]). In any event, that contention is without meritinasmuch as "the testimony adduced at the suppression hearing established that the policeofficers' traffic stop was supported by the requisite probable cause to believe that therehad been a violation of Vehicle and Traffic Law § 375 (12-a) (b)" (People v Collins, 105 AD3d1378, 1379 [2013], lv denied 21 NY3d 1003 [2013]; see People v Estrella, 48 AD3d1283, 1285 [2008], affd 10 NY3d 945 [2008], cert denied 555 US1032 [2008]).
Contrary to defendant's further contention, Supreme Court did not err in refusing tosuppress the physical evidence that the police investigator removed from defendant'sclenched buttocks after defendant informed the investigator that "he had some crack inhis pants and he would take it out before we went to the holding center." The courtproperly found that "defendant voluntarily consented to the search of . . . hisperson" (People v Herndon,75 AD3d 1083, 1084 [2010], lv denied 15 NY3d 852 [2010]; seegenerally People v Meredith, 49 NY2d 1038, 1039 [1980]). In any event, the courtalso properly determined that the evidence was not seized as the result of either a bodycavity search or a visual body cavity inspection. It is well settled that a " 'visualbody cavity inspection' . . . occurs when a police officer looks at thearrestee's anal or genital cavities, usually by asking the arrestee to bend over; however,the officer does not touch the arrestee's body cavity. In contrast, a 'manual body cavitysearch' includes some degree of [*2]touching or probingof a body cavity that causes a physical intrusion beyond the body's surface" (People v Hall, 10 NY3d303, 306-307 [2008], cert denied 555 US 938 [2008]). Here, to the contrary,the evidence establishes that the investigator initially saw the string that was at the end ofthe bag when defendant pulled back the waistband of his pants and exhibited the top ofhis buttocks. The investigator then, "without touching [defendant] or invading his analcavity, retrieved a plastic bag protruding from his buttocks" (Matter of Demitrus B., 89AD3d 1421, 1422 [2011]; see People v Butler, 105 AD3d 1408, 1409 [2013], lvdenied 21 NY3d 1072 [2013]).
We have considered defendant's remaining contentions and conclude that they do notwarrant modification or reversal of the judgment. Present—Scudder, P.J., Smith,Carni, Lindley and Whalen, JJ.