                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   107272
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

BRANDON L. WILLIAMS,
                    Appellant.
________________________________


Calendar Date:   September 6, 2016

Before:   Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.

                             __________


     Torrance L. Schmitz, Vestal, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Damian M.
Sonsire of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Chemung
County (Rich Jr., J.), rendered October 31, 2014, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the fifth degree.

      In February 2014, an officer of the Elmira Police
Department stopped a vehicle that matched a description of one
that had been stolen and that was being driven by defendant.
After defendant acknowledged that his driver's license was
suspended, he was arrested for aggravated unlicensed operation of
a motor vehicle in the second degree. Following his arrest,
defendant was transported to the police station and subjected to
a search, after which officers ultimately recovered marihuana and
cocaine, which defendant had secreted on his person. Defendant
was subsequently indicted on one count of criminal possession of
                              -2-                107272

a controlled substance in the fifth degree. Following the denial
of his motion to suppress the drugs found on his person,
defendant pleaded guilty as charged and was sentenced, as a
second felony offender, to two years in prison with two years of
postrelease supervision. Defendant appeals, arguing that County
Court erred in denying his suppression motion.

      County Court properly denied defendant's motion to suppress
the drugs as evidence. "[A] strip search must be founded on a
reasonable suspicion that the arrestee is concealing evidence
underneath clothing and the search must be conducted in a
reasonable manner" (People v Hall, 10 NY3d 303, 310-311 [2008],
cert denied 555 US 938 [2008]; see People v Williams, 140 AD3d
1526, 1528 [2016]). "To advance to the next level required for a
visual cavity inspection, the police must have a specific,
articulable factual basis supporting a reasonable suspicion to
believe the arrestee secreted evidence inside a body cavity and
the visual inspection must be conducted reasonably" (People v
Hall, 10 NY3d at 311; see People v Cogdell, 126 AD3d 1136, 1138
[2015], lv denied 25 NY3d 1200 [2015]).

      At the suppression hearing, police officer testimony
established that, when he was pulled over, defendant was "swaying
back and forth" in his seat as officers approached the vehicle
and then was emitting a strong odor of marihuana. Officers did
not find any drugs in the vicinity of defendant when he was
arrested or when his clothing and pockets were searched, and
defendant continued to smell of marihuana even after he was taken
from the vehicle that he was stopped in. Moreover, a search of
the vehicle did not uncover the source of the odor. Thereafter,
police officers placed defendant in a search room at the police
department to conduct a strip search. Defendant removed articles
of clothing one by one, articles which were thereafter searched
and none of which revealed the source of the odor of marihuana.
The officers thereafter attempted to conduct a visual cavity
search, which defendant refused to comply with. After defendant
refused to comply and after officers attempted to secure
defendant in handcuffs, defendant attempted to strike and kick
the officers, leading to a physical altercation. During that
altercation, one officer observed a white object protruding from
                              -3-                107272

defendant's buttocks. After defendant was subdued, an officer
began the application for a search warrant in order to perform a
body cavity search. In the meantime, and according to an officer
assigned to observe defendant, defendant provided officers with a
baggie containing what appeared to be marihuana that he had
procured from his groin area. Thereafter, the same officer
observed defendant holding a white object in his hand. Officers
pinned defendant to the wall, pried his fingers open when he
refused to open his hand and secured a plastic baggie containing
a white substance later identified as cocaine.

      Defendant testified to a different narrative. According to
him, officers openly discussed falsifying reports so as to
justify a strip search. Defendant further claimed that he was
punched in the face by a police officer after he was removed from
the vehicle that he was driving. Finally, defendant claimed
that, when he refused to submit to strip and visual cavity
searches, officers wrestled him to the ground and forcefully
removed a baggie of cocaine from his rectum.

      In regard to all disputed facts relevant to this
suppression inquiry, County Court credited the testimony provided
by the officers and discredited defendant's testimony.
Considering the officers' testimony, the aforementioned
individualized facts regarding defendant's behavior and odor
provided reasonable suspicion to perform a strip search and then
attempt a visual cavity search when the strip search did not
reveal the source of the odor. The execution of the strip search
was reasonable, particularly in light of the fact that defendant
removed his own clothes in a designated search room. Contrary to
defendant's contention, force was used to secure defendant after
he refused to submit to handcuffing and attempted to strike and
kick officers, but it was not used for the purposes of conducting
a visual cavity search. Finally, the credited evidence
established that no cavity search occurred, as police officers
only recovered the evidence after it either fell out of
defendant's body or was removed by him. Based on the foregoing,
and affording appropriate deference to the court's credibility
determination, the court did not err in denying defendant's
suppression motion (see People v Williams, 140 AD3d at 1528;
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People v Cogdell, 126 AD3d at 1139; People v Anderson, 104 AD3d
968, 971 [2013], lvs denied 21 NY3d 1013, 1016 [2013]).

     Peters, P.J., Lynch, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
