Opinion
April 24, 1989
Appeal from the County Court, Dutchess County (Hillery, J.).
Ordered that the judgment is affirmed.
The evidence adduced at the suppression hearing indicates that the stop of the vehicle operated by the defendant by Officer Powell at 3:30 A.M. on November 23, 1986 was reasonable, since it was based upon the fact that it was being operated with one taillight in violation of Vehicle and Traffic Law § 375 (2) (a) (3) (see, People v. Williams, 137 A.D.2d 569, 570; People v McDaniel, 114 A.D.2d 471). Moreover, there is no basis for concluding that Officer Powell stopped the vehicle for a traffic violation merely as a pretext to investigate unrelated criminal activity (cf., People v. Llopis, 125 A.D.2d 416).
Moreover, the officer properly ordered the defendant to step out of the car (see, Pennsylvania v. Mimms, 434 U.S. 106; see also, People v. Marin, 80 A.D.2d 541; People v. David L., 56 N.Y.2d 698). The defendant's glazed and bloodshot eyes, as well as the odor of alcohol, alerted Officer Powell to the defendant's possible intoxication. The defendant voluntarily submitted to an "alcosensor" test, conducted pursuant to the authority of Vehicle and Traffic Law § 1194 (1) (b). While Officer Powell administered the test, Officer Bartolotti, who had arrived on the scene in response to Officer Powell's radio report of the stop, shined his flashlight on the inspection and registration stickers on the vehicle's windshield to check the validation dates. As he did so, that officer observed, in plain view, on the floor of the driver's side of the vehicle, a clear plastic bag, containing white powder, which, based on his training and experience, he believed to be cocaine. The officer seized the contraband and the defendant was placed under arrest. Upon returning to the vehicle, Officer Bartolotti retrieved two additional bags, also containing cocaine, which were also in plain view on the floor of the driver's side of the vehicle.
Both Federal and State decisional law permit seizure of articles which come into an officer's plain view from a lawfully obtained vantage point (see, Coolidge v. New Hampshire, 403 U.S. 443, 466, reh denied 404 U.S. 874; People v. Baldanza, 138 A.D.2d 722, 723; People v. Thomas, 125 A.D.2d 895, 897). Contrary to the defendant's contention, Officer Bartolotti's use of a flashlight was not an unreasonable intrusion and did not convert a proper observation into an impermissible search (see, People v. Cruz, 34 N.Y.2d 362, rearg granted and decision amended 35 N.Y.2d 708; People v. Baveghems, 137 A.D.2d 822; see also, People v. Baldanza, supra; People v. Perez, 135 A.D.2d 582, 583). The viewing, with the aid of a flashlight, of a clear plastic bag containing a white substance on a floor of a car by an officer trained and experienced in the field of narcotics, "constitutes probable cause to arrest the defendant and seize the contraband" (People v. Baldanza, supra, at 724; see also, People v. Cox, 28 N.Y.2d 752; People v. Rowell, 27 N.Y.2d 691; People v. McRay, 51 N.Y.2d 594). The warrantless search of the vehicle, resulting in the seizure of two other bags of cocaine, was authorized as a search incident to an arrest under the plain view doctrine (see, New York v. Belton, 453 U.S. 454; People v. Baveghems, supra) and under the automobile exception to the warrant requirement (People v. Belton, 55 N.Y.2d 49).
We also reject the defendant's contention that the testimony regarding the discovery of the contraband is incredible and patently tailored to overcome constitutional objections. There is no basis on this record for disturbing the determination of the court denying suppression of the bags of cocaine (see, People v. Baveghems, supra; People v. Baldanza, supra).
Finally, the defendant was sentenced, as a second felony offender, to the minimum allowable sentence for this class B felony offense (see, Penal Law § 70.06 [b]; [4] [b]). Consequently, the sentence cannot be considered unduly harsh or excessive (see, People v. Brown, 46 A.D.2d 255). Mangano, J.P., Brown, Rubin and Kooper, JJ., concur.