PEOPLE v. MOTHERSELL (2009)

 On appeal from a judgment convicting him, upon his guilty plea, of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5] ), defendant contends that County Court erred in refusing to suppress a plastic bag containing crack cocaine recovered from his person by a police officer pursuant to a search warrant.   We reject defendant's contention that the search warrant was insufficiently specific because it permitted the search of “any and all person(s) present” at the apartment designated in the warrant.  “[S]earch warrants that direct a search of a particular place ․ ‘may also direct a search of any person present thereat or therein’ ․, as long as the search warrant application establishes probable cause for the search” (People v. Ming, 35 A.D.3d 962, 965, 825 N.Y.S.2d 825, lv. denied 8 N.Y.3d 883, 832 N.Y.S.2d 495, 864 N.E.2d 625).   Contrary to defendant's further contention, the warrant application established probable cause to believe that the apartment was being used for the sale of controlled substances and “that anyone present was involved in the ongoing illegal activity” (People v. Neish, 232 A.D.2d 744, 746, 649 N.Y.S.2d 48, lv. denied 89 N.Y.2d 927, 654 N.Y.S.2d 729, 677 N.E.2d 301;  see People v. Williams, 284 A.D.2d 564, 565, 726 N.Y.S.2d 740, lv. denied 96 N.Y.2d 909, 730 N.Y.S.2d 807, 756 N.E.2d 95).

 The evidence at the suppression hearing supports the court's determination that the officers were justified in conducting a strip search of defendant (see Williams, 284 A.D.2d at 565, 726 N.Y.S.2d 740).   In addition, “[d]espite defendant's attempts to characterize this search as a body cavity search, the record fails to support this argument;  the bag was visibly sticking out from between [defendant's] buttocks, [and was] not inserted into a body cavity such as defendant's rectum” (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).   Finally, the contention of defendant that he was denied effective assistance of counsel is not reviewable on direct appeal to the extent that it concerns matters outside the record on appeal (see People v. Joyner, 19 A.D.3d 1129, 796 N.Y.S.2d 818).   Defendant's contention concerning the alleged denial of effective assistance of counsel does not otherwise survive the guilty plea because “[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097).

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

MEMORANDUM: