People v. Goldring

• Decision Date: 13 October 1992
• Citation: 186 A.D.2d 675,588 N.Y.S.2d 639
• Parties: The PEOPLE, etc., Respondent, v. Robert GOLDRING, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 639

588 N.Y.S.2d 639

186 A.D.2d 675

The PEOPLE, etc., Respondent, v. Robert GOLDRING, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 13, 1992.

Stephen L. Plutzer, Garden City, for appellant.

Robert Goldring, pro se.

Denis Dillon, Dist. Atty., Mineola (Judith R. Sternberg and Douglas J. Hayden, of counsel), for respondent.

Before BRACKEN, J.P., and HARWOOD, BALLETTA and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Wexner, J.), rendered November 1, 1990, convicting him of criminal possession of a controlled substance in the fifth degree and criminal possession of a weapon in the third degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

The vehicle in which the defendant was a passenger was stopped in connection with a traffic violation, and a police officer subsequently observed a crack vial in the vehicle's ashtray. Contrary to the defendant's contention, that the officer saw the crack vial with the aid of a flashlight does not render the officer's observation of the crack vial a "search" within the meaning of the Federal or State Constitutions (U.S. Const., IV, XIV Amends.; N.Y. Const., art. I, § 12; United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326; Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502; People v. Williams, 137 A.D.2d 569, 524 N.Y.S.2d 309). As the Supreme Court of the United States stated in United States v. Dunn, supra, 480 U.S. at 305, 107 S.Ct. at 1141, quoting Texas v. Brown, supra, 460 U.S. at 739-740, 103 S.Ct. at 1542, "it is 'beyond dispute' that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car '[violated] no right secured * * * by the Fourth Amendment' ". Once the crack vial had been detected, the police had the right to conduct a warrantless automobile search based on the existence of probable cause to believe that the automobile contained contraband (see, People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40).

We have examined the defendant's remaining contentions, including those contained in his supplemental pro se brief, and find them to be without merit.