SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1113 

CAF 11-01011 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ. 

 

IN THE MATTER OF DEMITRUS B., 

RESPONDENT-APPELLANT. 

----------------------------- MEMORANDUM AND ORDER

MONROE COUNTY ATTORNEY, 

PETITIONER-RESPONDENT. 

(APPEAL NO. 1.) 

TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER, FOR

RESPONDENT-APPELLANT. 

DAVID VAN VARICK, COUNTY ATTORNEY, ROCHESTER (TIMOTHY M. LEXVOLD OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

 

Appeal from an order of the Family Court, Monroe County (Joseph

G. Nesser, J.), dated August 19, 2010 in a proceeding pursuant to

Family Court Act article 3. The order, inter alia, adjudicated

respondent to be a juvenile delinquent. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs. 

Memorandum: In appeal No. 1, respondent appeals from an order

adjudicating him to be a juvenile delinquent based upon his admission

that he committed an act that, if committed by an adult, would

constitute the crime of criminal possession of a controlled substance

in the third degree (Penal Law § 220.16 [1]). In appeal No. 2,

respondent appeals from an order of protection issued on August 19,

2010. We note at the outset that respondent’s contention that the

order of protection is invalid has been rendered moot inasmuch as the

order has expired by its own terms (see Matter of Kristine Z. v

Anthony C., 43 AD3d 1284, lv denied 10 NY3d 705; Matter of Muldrew v

Mixon, 237 AD2d 942). We therefore dismiss the appeal from the order

in appeal No. 2. The remainder of our decision herein thus concerns

only appeal No. 1. 

Contrary to respondent’s contention, Family Court properly

refused to suppress the tangible evidence seized from respondent by

police officers. Respondent’s actions in meeting with two other

individuals in a “chronic open air drug sale location” and immediately

running into a store upon seeing the officers approaching provided the

officers with an “ ‘articulable reason’ ” for their initial encounter

with respondent (People v Rodriguez, 82 AD3d 1614, 1615, lv denied 17

NY3d 800, quoting People v De Bour, 40 NY2d 210, 213; see People v

Reyes, 83 NY2d 945, 946, cert denied 513 US 991; Matter of James R.,
-2- 1113 

CAF 11-01011 

76 NY2d 825, 826). Immediately after the initial encounter, the

officers observed a surveillance video that showed respondent in the

store shoving a “clear plastic sandwich bag” down “the rear of his

pants in between his buttocks.” When the officers asked him what he

shoved down his pants, respondent told them that he did not know what

they were talking about. Based on the totality of the circumstances,

including the officers’ observations and their training and experience

regarding the common methods of drug packaging, the officers had

probable cause to search respondent, resulting in the seizure of the

bags of crack cocaine and money that were in his possession (see

People v Alvarez, 100 NY2d 549, 550; People v Febus, 11 AD3d 554, 556,

lv dismissed 4 NY3d 743). 

Respondent failed to preserve for our review his contention that

the police improperly conducted a body cavity search without first

obtaining a warrant to do so (see generally People v Gonzalez, 55 NY2d

887, 888; People v Fuentes, 52 AD3d 1297, 1298, lv denied 11 NY3d 736;

People v Ricks, 49 AD3d 1265, 1266, lv denied 10 NY3d 869, 11 NY3d

740). In any event, that contention is without merit. After

respondent refused the police officers’ request to remove the plastic

bag he had shoved down his pants, the officers pulled back

respondent’s pants and, without touching respondent or invading his

anal cavity, retrieved a plastic bag protruding from his buttocks. 

Thus, the officers conducted a strip search rather than a body cavity

search, for which a warrant would have been required in the absence of

exigent circumstances (see generally People v Hall, 10 NY3d 303, 310-

313, cert denied ___ US ___, 129 S Ct 159).

Respondent’s contention that the testimony of a police officer

regarding the surveillance video should have been precluded on the

ground that petitioner was obligated to preserve the video is raised

for the first time on appeal and is therefore not preserved for our

review (see CPL 470.05 [2]). In any event, that contention is without

merit because neither the police nor petitioner ever had possession or

control of the video and thus petitioner had no obligation to preserve

it (see People v Acosta, 74 AD3d 1213, 1214, lv denied 15 NY3d 849;

People v Charlton, 69 AD3d 647, lv denied 14 NY3d 799; see generally

People v James, 93 NY2d 620, 644).

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court