PEOPLE v. LOWMAN (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1], [12] ).   Defendant failed to preserve for our review his contentions that the search warrant authorizing a search of his person was defective because it did not specifically authorize a body cavity search and that the manner in which the search was conducted was unreasonable (see generally People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363;  People v. Tutt, 38 N.Y.2d 1011, 1012-1013, 384 N.Y.S.2d 444, 348 N.E.2d 920).   In any event, those contentions are without merit.

 Contrary to the contention of defendant, the search of his person constituted a strip search and visual body cavity search rather than a full body cavity search (see People v. Walker, 27 A.D.3d 899, 901, 810 N.Y.S.2d 592, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 890, 853 N.E.2d 261).   A strip search of a defendant is justified if the police have “ ‘a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest’ ” (People v. Kelley, 306 A.D.2d 699, 700, 762 N.Y.S.2d 438, lv. denied 1 N.Y.3d 598, 776 N.Y.S.2d 230, 808 N.E.2d 366, quoting Weber v. Dell, 804 F.2d 796, 802, cert. denied 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762;  see People v. Maye, 43 A.D.3d 556, 558, 840 N.Y.S.2d 490;  People v. Taylor, 294 A.D.2d 825, 827, 741 N.Y.S.2d 822).   Here, the police had reasonable suspicion to justify the strip search and visual body cavity search of defendant based on a confidential informant's statement to the police that defendant possessed “a substantial amount of crack cocaine” (see Walker, 27 A.D.3d at 901, 810 N.Y.S.2d 592;  Taylor, 294 A.D.2d at 827, 741 N.Y.S.2d 822), along with the fact that no drugs were discovered when the police conducted a pat-down search of defendant.   The visual body cavity search was conducted in a reasonable manner, i.e., in a holding cell after defendant had removed his clothing and the police had observed a substantial portion of the plastic bag containing crack cocaine hanging outside defendant's rectum (see Maye, 43 A.D.3d at 558, 840 N.Y.S.2d 490).

 We reject defendant's further contention that County Court erred in its Molineux ruling.   Evidence of the prior uncharged drug sale witnessed by the confidential informant shortly before defendant's arrest was admissible with respect to the issue of defendant's intent to sell drugs (see Maye, 43 A.D.3d at 558, 840 N.Y.S.2d 490;  People v. Williams, 21 A.D.3d 1401, 1402-1403, 801 N.Y.S.2d 659, lv. denied 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486;  People v. Blunt, 280 A.D.2d 956, 957, 721 N.Y.S.2d 199, lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206), as was the evidence that defendant possessed $325 at the time of his arrest (see People v. Mosby, 237 A.D.2d 990, 654 N.Y.S.2d 926, lv. denied 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062;  People v. Gadsden, 192 A.D.2d 1103, 597 N.Y.S.2d 256, lv. denied 82 N.Y.2d 718, 602 N.Y.S.2d 815, 622 N.E.2d 316).   We agree with the contention of defendant in his pro se supplemental brief that he was under arrest when he was stopped, handcuffed, placed in a police car, transported to the police station and handcuffed to a ring attached to a wall while the police obtained a search warrant authorizing a search of his person (see People v. Walker, 244 A.D.2d 796, 797, 665 N.Y.S.2d 720;  People v. Quarles, 187 A.D.2d 200, 203, 593 N.Y.S.2d 635, lv. denied 81 N.Y.2d 1018, 600 N.Y.S.2d 206, 616 N.E.2d 863).   We reject his contention, however, that the police lacked probable cause to arrest him, inasmuch as the People established that the confidential informant was reliable and had a sufficient basis of knowledge (see Maye, 43 A.D.3d at 557, 840 N.Y.S.2d 490;  People v. Carter, 39 A.D.3d 1226, 1226-1227, 834 N.Y.S.2d 779, lv. denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199;  People v. Singletary, 275 A.D.2d 947, 715 N.Y.S.2d 185, lv. denied 96 N.Y.2d 739, 722 N.Y.S.2d 806, 745 N.E.2d 1029).   Thus, the court properly refused to suppress the physical evidence seized from defendant's person (see Maye, 43 A.D.3d at 557, 840 N.Y.S.2d 490;  Carter, 39 A.D.3d at 1227, 834 N.Y.S.2d 779).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: