PEOPLE v. COLIN (2024)

Judgment, Supreme Court, New York County (Felicia Mennin, J.), rendered June 21, 2022, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a split sentence of six months of incarceration followed by five years of probation, unanimously affirmed.

The People note that they are not relying on defendant's waiver of the right of appeal and therefore, we have considered defendant's suppression claim on the merits.  The court credited the searching police officer's testimony and discredited defendant's testimony as “simply incredible.”  Therefore, its factual determination that the drugs, when recovered, were not inside defendant's rectum, is entitled to deference (see People v. Rivera, 68 N.Y.2d 786, 787–788, 506 N.Y.S.2d 854, 498 N.E.2d 418 [1986];  People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977];  People v. Moore, 93 A.D.3d 519, 522, 940 N.Y.S.2d 274 [1st Dept. 2012], lv denied 19 N.Y.3d 865, 947 N.Y.S.2d 414, 970 N.E.2d 437 [2012];  People v. Davis, 240 A.D.2d 309, 309, 659 N.Y.S.2d 437 [1st Dept. 1997], lv denied 91 N.Y.2d 871, 668 N.Y.S.2d 570, 691 N.E.2d 642 [1997]).  We see no basis to disturb it (id.).  Therefore, the search was not a manual body cavity search requiring a warrant (see People v. Hall, 10 N.Y.3d 303, 856 N.Y.S.2d 540, 886 N.E.2d 162 [2008], cert. denied 555 U.S. 938, 129 S.Ct. 159, 172 L.Ed.2d 241 [2008];  People v. Duffy, 66 A.D.3d 588, 886 N.Y.S.2d 605 [1st Dept. 2009]).