Opinion
July 12, 1996
Appeal from the Monroe County Court, Connell, J.
Present — Pine, J.P., Fallon, Doerr, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly denied defendant's motion to suppress physical evidence seized from defendant's vehicle and residence. Contrary to defendant's contention, we conclude that the court properly found that the officer's use of a flashlight to illuminate the interior of defendant's vehicle did not constitute a search within the meaning of the Fourth Amendment ( see, People v. Wiesmore, 204 A.D.2d 873, lv denied 84 N.Y.2d 873; People v. Scott, 166 A.D.2d 919, 920, lv denied 77 N.Y.2d 911; People v. Gilbert, 115 A.D.2d 303; see also, Texas v. Brown, 460 U.S. 730, 739-740). Upon illuminating the interior of defendant's vehicle, the officer observed, in plain view on the floor behind the front passenger seat, a "black block type" package wrapped in black plastic. The officer testified that one corner of the package had a "tear" or "window" through which he observed a "white substance". Based upon his training and experience in investigating narcotics trafficking as a member of the Canine Unit, the officer concluded that the package contained cocaine. Under the circumstances of this case, the officer had probable cause to believe that defendant was in possession of cocaine and he had probable cause to arrest defendant and seize the cocaine ( see, People v Thomas, 125 A.D.2d 895, 897; cf., People v. Grovner, 172 A.D.2d 1035, 1036).
The record additionally supports the court's conclusion that defendant thereafter "consented to search both addresses on Edgecreek Trail and placed no limitations on the scope of the search" ( see, People v. Mitchell, 211 A.D.2d 553, lv denied 86 N.Y.2d 738; People v. Estrella, 160 A.D.2d 250, lv denied 76 N.Y.2d 787). Lastly, we conclude that the court properly denied defendant's motion to reopen the suppression hearing because defendant failed to make the required showing that "additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion" (CPL 710.40). The fact that defendant would have testified at the second hearing is insufficient to entitle him to that relief ( see, People v Fuentes, 74 A.D.2d 753, 754, affd 53 N.Y.2d 892). The record does not support defendant's contention that the court was unaware of its discretionary power pursuant to CPL 710.40 (4) to reopen the suppression hearing.