Opinion
October 1, 1998
Appeal from the Supreme Court, New York County (William Wetzel, J.).
The arresting officer's trial testimony, that the drugs seized from defendant pursuant to an arrest for theft of services were contained in a small paper bag, did not constitute evidence that defendant could not have discovered with reasonable diligence before determination of the motion to suppress, because defendant was clearly aware of it from the time of his arrest. Defendant's claim of lack of knowledge as to the nature of the container is without merit, since it rests on the same incredible version of the facts to which defendant testified (and which was necessarily rejected by the jury). Accordingly, defendant's motion to renew his motion to suppress the drugs was properly denied (CPL 710.40; People v. Washington, 238 A.D.2d 43, 48, lv denied 91 N.Y.2d 1014). Moreover, the search of the paper bag was proper whether the drugs were in a brown paper bag or a clear plastic bag, since the record sufficiently established that the search occurred immediately after defendant was arrested and handcuffed ( see, People v. Smith, 59 N.Y.2d 454; People v. Wylie, 244 A.D.2d 247, lv denied 91 N.Y.2d 946). Since the purported "new evidence" would not have materially affected the earlier determination, it did not qualify as an "additional pertinent fact" within the meaning of CPL 710.40 (4) ( see, People v. Clark, 88 N.Y.2d 552, 555; People v. Washington, supra, 238 A.D.2d at 48).
Concur — Lerner, P.J., Wallach, Rubin and Saxe, JJ.