People v. Lowman
| Decision Date | 14 March 2008 |
| Docket Number | KA 06-01222. |
| Citation | 49 A.D.3d 1262,856 N.Y.S.2d 342,2008 NY Slip Op 02345 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RODNEY J. LOWMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered March 28, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
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 NY2d 1029, 1031 [1980]; People v Tutt, 38 NY2d 1011, 1012-1013 [1976]). 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 AD3d 899, 901 [2006], lv denied 7 NY3d 764 [2006]). 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 AD2d 699, 700 [2003], lv denied 1 NY3d 598 [2004], quoting Weber v Dell, 804 F2d 796, 802 [1986], cert denied 483 US 1020 [1987]; see People v Maye, 43 AD3d 556, 558 [2007]; People v Taylor, 294 AD2d 825, 827 [2002]). 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 AD3d at 901; Taylor, 294 AD2d at 827), 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 AD3d at 558).
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 AD3d at 558; People v Williams, 21 AD3d 1401, 1402-1403 [2005], lv denied 5 NY3d 885 [2005]; People v Blunt, 280 AD2d 956, 957 [2001], lv denied 96 NY2d 826 [2001]), as was the evidence that defendant possessed $325 at the time of his arrest (see People v Mosby, 237 AD2d 990 [1997], lv denied 90 NY2d 861 [1997]; People v Gadsden, 192 AD2d 1103 [1993], lv denied 82 NY2d 718 [1993]). 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 AD2d 796, 797 [1997]; People v Quarles, 187 AD2d 200, 203 [1993], lv denied 81 NY2d 1018 [1993]). 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 AD3d at 557; People v Carter, 39 AD3d 1226, 1226-1227 [2007], lv denied 9...
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