PEOPLE v. ANDERSON (2019)

The court properly denied defendant's suppression motion.  The only issue raised by defendant on appeal is whether the People sufficiently established that the search of his pant leg at the police precinct was incident to his arrest, rather than an unauthorized strip search.  However, defendant did not raise this issue at the hearing, and the court “did not expressly decide, in response to protest, the issues now raised on appeal” (People v. Miranda, 27 N.Y.3d 931, 932, 30 N.Y.S.3d 600, 50 N.E.3d 224 [2016] ), notwithstanding its “mere reference” (id. at 933, 30 N.Y.S.3d 600, 50 N.E.3d 224) to a search incident to a lawful arrest.  Furthermore, by failing “to raise a particular legal argument before the court of first instance, [defendant] effectively deprive[d] the People of a fair opportunity to present their proof on that issue” (People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [1980] ).  We decline to review this unpreserved issue in the interest of justice.  As an alternative holding, we find that to the extent it permits review, the record supports a reasonable inference that the search of defendant's pant leg was an ordinary search incident to a valid arrest and not a strip search (see People v. Estevez, 145 A.D.3d 578, 42 N.Y.S.3d 799 [1st Dept. 2016], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ).

Defendant's ineffective assistance of counsel claim relating to the lack of preservation is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

In light of the foregoing, there is no basis for vacating defendant's guilty plea to possessing a sexual performance by a child.