Opinion
No. 77 SSM 54.
Decided February 12, 2009.
APPEAL, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered August 9, 2007. The Appellate Division affirmed a judgment of the Warren County Court (John S. Hall, J.), which had convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the fifth degree, criminal use of drug paraphernalia in the second degree and promoting prison contraband in the first degree.
People v Maye, 43 AD3d 556, modified.
Matthew C. Hug, North Greenbush, for appellant. Respondent precluded.
Before: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be modified by granting defendant's motion to suppress the cocaine recovered and remitting to County Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.
Defendant seeks suppression of evidence including cocaine found in a "baggie" during a manual body cavity search performed at a police station, without a warrant. The officer who carried out the search testified that he saw the "baggie" protruding from defendant's rectum, and removed it. Since no exigent circumstances prevented the police from seeking prior judicial authorization for the search, defendant's motion to suppress should be granted to the extent of suppressing the cocaine recovered ( see People v Hall, 10 NY3d 303, 311).
In memorandum.
Chief Judge LIPPMAN taking no part.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.