         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
