People v. Chase

2024 NY Slip Op 01837

The People of the State of New York, Respondent, v. Jason R. Chase, Appellant.

No. 112053, No. CR-23-1333

Supreme Court of New York, Third Department

April 4, 2024

Calendar Date: February 20, 2024

Rural Law Center of New York, Inc., Plattsburgh (Kristin A. Bluvas of counsel), for appellant.

John M. Muehl, District Attorney, Cooperstown (Christopher James Di Donna of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Pritzker and Mackey JJ.

GARRY P.J.

Appeals (1) from a judgment of the County Court of Otsego County (Brian D. Burns, J.), rendered December 7, 2018, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the third degree (two counts), (2) from a judgment of said court, rendered April 12, 2019, which resentenced defendant, and (3) by permission from an order of said court (John F. Lambert, J.), entered May 2, 2023, which denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment of conviction and set aside the sentence, without a hearing.

In September 2017, based upon information provided by a confidential informant, Oneonta Police Detective Branden Collison applied for a warrant to search defendant and the motel room that he occupied for heroin and cocaine, together with evidence related to the possession and sale thereof. A warrant was issued and executed, and police discovered items consistent with the sale of cocaine and heroin. Defendant was then brought to the police station where he was strip-searched, and a package was recovered from between his buttocks. The contents of this package were later identified as 61 wax paper folds of heroin and 11 knotted bags of crack cocaine. As a result, defendant was charged with criminal possession of a controlled substance in the third degree (two counts). Defendant thereafter unsuccessfully moved to suppress the physical evidence recovered during the search of his person, among other things. Following a jury trial, defendant was convicted as charged. The initial sentence imposed was illegal; County Court (Burns, J.) thereafter resentenced defendant, as a second felony drug offender, to concurrent prison terms of 12 years on each count, to be followed by three years of postrelease supervision. Defendant's subsequent motion to, among other things, vacate the judgment of conviction pursuant to CPL 440.10 was denied by County Court (Lambert, J.) without a hearing. Defendant now appeals from the judgment of conviction, the judgment after resentencing and, by permission, from the denial of his posttrial motion.

First, defendant challenges the denial of his motion to suppress, asserting that he was subjected to an unlawful body cavity search. "There are three distinct and increasingly intrusive types of bodily examinations undertaken by law enforcement after certain arrests"; namely, a strip search, a visual body cavity inspection, and a manual body cavity search (People v Hall, 10 N.Y.3d 303, 306 [2008], cert denied 555 U.S. 938 [2008]). As relevant here, "[a] 'strip search' requires the arrestee to disrobe so that a police officer can visually inspect the person's body" (id.), whereas "a visual body cavity inspection involves the inspection of the subject's anal or genital areas without any physical contact by the officer and, in contrast, a manual body cavity search includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body's surface" (People v Holton, 160 A.D.3d 1288, 1289 [3d Dept 2018] [internal quotation marks and citation omitted], lv denied 32 N.Y.3d 938 [2018]).

The testimony adduced at the suppression hearing demonstrates that the package at issue did not simply "fall from defendant's body of its own accord" upon a merely visual inspection (id.). The officer who conducted the search of defendant's person testified that he had to physically manipulate defendant's anatomy by separating his buttocks before dislodging the bundle of drugs. Although the officer allegedly removed the object without it having to be "pried out very hard," this nonetheless reveals that some force,...