People v. Colin , 2024 NY Slip Op 05294 ( 2024 )

People v Colin (2024 NY Slip Op 05294)

People v Colin

2024 NY Slip Op 05294

Decided on October 24, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 24, 2024
Before: Oing, J.P., Singh, Gesmer, González, Pitt-Burke, JJ.

Ind No. 423/20 Appeal No. 2879 Case No. 2022-03365

[*1]The People of the State of New York, Respondent,

v

Junior Colin, Defendant-Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Rashad Moore of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Nathan Morgante of counsel), for respondent.

Judgment, Supreme Court, New York County (Felicia Mennin, J.), rendered June 21, 2022, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a split sentence of six months of incarceration followed by five years of probation, unanimously affirmed.

The People note that they are not relying on defendant's waiver of the right of appeal and therefore, we have considered defendant's suppression claim on the merits. The court credited the searching police officer's testimony and discredited defendant's testimony as "simply incredible." Therefore, its factual determination that the drugs, when recovered, were not inside defendant's rectum, is entitled to deference (see People v Rivera, 68 NY2d 786, 787-788 [1986]; People v Prochilo, 41 NY2d 759, 761 [1977]; People v Moore, 93 AD3d 519, 522 [1st Dept 2012], lv denied 19 NY3d 865 [2012]; People v Davis, 240 AD2d 309, 309 [1st Dept 1997], lv denied 91 NY2d 871 [1997]). We see no basis to disturb it (id.). Therefore, the search was not a manual body cavity search requiring a warrant (see People v Hall, 10 NY3d 303 [2008], cert denied 555 US 938 [2008]; People v Duffy, 66 AD3d 588 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 24, 2024