                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 12, 2015                     106031
________________________________

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

JAMES E. COGDELL,
                    Appellant.
________________________________


Calendar Date:   January 6, 2015

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

                              __________


     Tracy A. Donovan-Laughlin, Cherry Valley, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (John R.
Thweatt of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered March 1, 2013, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
controlled substance in the third degree.

      In March 2012, members of the Elmira Police Department's
drug unit began conducting electronic surveillance of an
individual believed to be dealing crack cocaine in Chemung
County. On May 13, 2012, one of the officers intercepted certain
phone calls between the suspected dealer and another individual;
based upon the use of various coded words and phrases during
those phone calls, the officer believed that a drug deal was
being arranged. In response, the officer alerted the
surveillance team that was monitoring a location frequented by
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the alleged dealer. Shortly thereafter, an individual – later
identified as defendant – approached the residence in question on
a bicycle and went inside. Approximately 20 minutes later,
defendant exited the residence and rode away on his bicycle,
cutting through the parking lot of a local Rite Aid drug store.

      Shortly thereafter, defendant was stopped by police –
ostensibly for riding his bicycle in violation of various
provisions of the Vehicle and Traffic Law. In response to police
questioning, defendant began to "fidget[]" and "perspire
heavily," appeared to be "very, very nervous" and was "shaking so
uncontrollably" that he had difficulty producing his
identification. Although defendant claimed to have just
purchased medication at Rite Aid, the officer in question knew
that this was untrue, as he had personally observed defendant
pass through the parking lot without stopping at the store. When
asked whether he was in possession of any illegal items,
defendant responded negatively and invited the officer to "check
him." Although the ensuing pat-down frisk did not disclose any
drugs or weapons, the officer did retrieve a large jar of
Vaseline, which – in his experience – often was used by
individuals to aid in secreting narcotics on their person. After
defendant falsely denied prior contact with the Elmira Police
Department, he was asked to accompany the officers to the police
station. At this point, defendant fled the scene and, after a
short foot chase, was apprehended and taken into custody.

      Once at the police station, officers performed a strip
search of defendant, which did not yield any drugs. When
officers attempted to visually inspect defendant's rectal area,
defendant was noncompliant and complained that his chest hurt.
Defendant then was transported to a local hospital for
evaluation, but was uncooperative with the medical staff. While
there, and following discussions with various law enforcement
officials, defendant retrieved a plastic bag of cocaine from his
rectum, turned it over to an officer and then left the hospital
by himself.

      Defendant thereafter was charged in a single-count
indictment with criminal possession of a controlled substance in
the third degree. Following the denial of his motion to suppress
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the 26.8 grams of cocaine recovered from his person, defendant
pleaded guilty as charged and thereafter was sentenced to a
prison term of four years followed by two years of postrelease
supervision. Defendant now appeals, contending that County Court
erred in denying his suppression motion.

      As a preliminary matter, inasmuch as the record does not
reflect that defendant waived his right to appeal (compare People
v Guyette, 121 AD3d 1430, 1431 [2014]), and because defendant did
not enter his plea until after County Court denied his request to
suppress the drugs in question (compare People v Morrison, 106
AD3d 1201, 1202 [2013], lv denied 23 NY3d 1065 [2014]),
defendant's challenge to County Court's denial of his suppression
motion survives his guilty plea (see CPL 710.70 [2]; People v
Rasul, 121 AD3d 1413, 1415 n [2014]). Turning to the merits, the
principles governing strip searches and body cavity examinations
are set forth in People v Hall (10 NY3d 303 [2008], cert denied
555 US 938 [2008]). Insofar as is relevant here, "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. To advance to . . . a visual
cavity inspection, the police must have a specific, articulable
factual basis supporting a reasonable suspicion to believe the
arrestee [has] secreted evidence inside a body cavity and the
[ensuing] visual inspection must be conducted reasonably" (id. at
310-311; see People v Mothersell, 14 NY3d 358, 366-367 [2010];
People v Hunter, 73 AD3d 1279, 1280 [2010]; People v Clayton, 57
AD3d 557, 558 [2008], lv denied 12 NY3d 852 [2009]). Although
the police cannot routinely subject all drug arrestees to visual
cavity inspections, the police are permitted – in the context of
formulating the particularized factual basis required for such
inspections – "to draw on their own experience and specialized
training to make inferences from and deductions about the
cumulative information available to them that might well elude an
untrained person" (People v Hall, 10 NY3d at 311 [internal
quotation marks and citation omitted]; accord People v
Mothersell, 14 NY3d at 366-367; People v Clayton, 57 AD3d at
558).

      Here, the evidence adduced at the suppression hearing
revealed that the police intercepted a series of phone calls
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wherein the suspected dealer and another individual – employing
coded words and phrases that had specific meanings within the
drug trade – discussed what the officers believed – based upon
their training and experience – to be the sale of a specific
quantity of drugs at a particular location (see People v Tambe,
71 NY2d 492, 501 [1988]; People v Baker, 174 AD2d 815, 816-817
[1991], lv denied 78 NY2d 920 [1991]; cf. People v Browning, 117
AD3d 1471, 1471 [2014], lv denied 23 NY3d 1060 [2014]). An
individual, later identified as defendant, thereafter was seen
entering and leaving the address discussed in the intercepted
phone calls – a residence where the suspected dealer had been
"hanging out and selling" drugs. Upon being approached by the
police, defendant was nervous, fidgety and shaking uncontrollably
and provided false information regarding both his recent
whereabouts and his prior contact with the local police
department (see People v Anderson, 104 AD3d 968, 971 [2013], lvs
denied 21 NY3d 1013, 1016 [2013]; People v Walker, 27 AD3d 899,
901 [2006], lv denied 7 NY3d 764 [2006]; People v Kelley, 306
AD2d 699, 700 [2003], lv denied 1 NY3d 598 [2004]). Although the
pat-down frisk failed to yield any drugs, a large jar of Vaseline
was found on defendant's person, the use of which – according to
testimony adduced at the hearing – is a "common practice for
people involved in [the] narcotics trade" when attempting to
secrete drugs on their person (see People v Wright, 283 AD2d 712,
714 [2001], lv denied 96 NY2d 926 [2001]). Based upon the
contents of the subject phone calls and defendant's subsequent
presence at a location known for drug sales, as well as
defendant's documented demeanor, the false information that he
provided and the discovery of the jar of Vaseline, the officers
in question reasonably suspected that defendant had secreted
drugs on his person. When they attempted to perform a visual
cavity inspection, however, defendant essentially was
noncompliant and began complaining of chest pains – a tactic that
defendant previously had employed when interacting with law
enforcement officials.

      The foregoing evidence, in our view, both provided the
reasonable suspicion necessary for the initial strip search of
defendant and furnished the "specific, articulable factual basis"
(People v Hall, 10 NY3d at 311) required in order to undertake
the subsequent visual cavity inspection of his person (compare
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People v Gonzalez, 57 AD3d 1220, 1221-1222 [2008]). We also are
satisfied that this visual cavity inspection was conducted in a
reasonable manner, i.e., in a private room with only male
officers present. Finally, inasmuch as the record reflects that
defendant himself removed and turned over the drugs in question,
no violation of defendant's Fourth Amendment rights occurred (see
People v Hunter, 73 AD3d at 1281). Accordingly, we discern no
basis upon which to disturb County Court's denial of defendant's
suppression motion.

     Garry, J.P., Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
