        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

323
KA 11-01386
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM J. BUTLER, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered June 28, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the sentence imposed and as
modified the judgment is affirmed, and the matter is remitted to
Genesee County Court for the filing of a predicate felony offender
statement and resentencing.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted criminal possession of a
controlled substance in the third degree (Penal Law §§ 110.00, 220.16
[12]). Contrary to defendant’s contention, County Court properly
refused to suppress the physical evidence that the police observed and
removed from defendant’s clenched buttocks during a strip search.
Defendant contends that the search warrant permitting a search of
defendant’s residence and person for a gun and narcotics did not
authorize the systematic search of defendant, pursuant to which the
police required him to remove one article of clothing at a time. We
reject that contention inasmuch as the search warrant specifically
directed a search of defendant’s person (cf. People v Mothersell, 14
NY3d 358, 361). Although no narcotics were found in defendant’s
clothing, the police observed a plastic bag protruding from his
clenched buttocks during a visual inspection of his body. Contrary to
defendant’s further contention, the police did not conduct a “visual
body cavity inspection,” which “occurs when a police officer looks at
[a defendant’s] anal or genital cavities, usually by asking [the
defendant] to bend over” or squat (People v Hall, 10 NY3d 303, 306,
cert denied 555 US 938; cf. Mothersell, 14 NY3d at 361; People v
Colon, 80 AD3d 440, 440), nor did they conduct a “manual body cavity
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                                                            KA 11-01386

search,” which “includes some degree of touching or probing of a body
cavity that causes a physical intrusion beyond the body’s surface”
(Hall, 10 NY3d at 306-307). Instead, the police removed the plastic
bag containing crack cocaine “without touching [defendant] or invading
his anal cavity” (Matter of Demitrus B., 89 AD3d 1421, 1422).

     Defendant failed to preserve for our review his contention that
the People failed to comply with the procedural requirements of CPL
400.21 when he was sentenced as a second felony offender (see People v
Butler, 96 AD3d 1367, 1368, lv denied 20 NY3d 931). We nevertheless
exercise our power to reach that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]), and conclude that
the record does not reflect that the People filed a statement as
required by CPL 400.21 (2), or that defendant admitted the prior
felony (cf. Butler, 96 AD3d at 1368). We therefore modify the
judgment by vacating the sentence, and we remit the matter to County
Court for the filing of a predicate felony offender statement pursuant
to CPL 400.21 prior to resentencing (see People v Carrasquillo, 96
AD3d 1369, 1369).

     Finally, the sentence is not unduly harsh or severe.




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
