Opinion
Argued November 28, 2000.
December 19, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered April 7, 1998, convicting him of burglary in the second degree, grand larceny in the fourth degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Elizabeth Manning of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and David L. Bendik of counsel), for respondent.
Before: DAVID S. RITTER, J.P., HOWARD MILLER, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in denying his application to reopen the Wade/Dunaway hearing (see, United States v. Wade, 388 U.S. 218; Dunaway v. New York, 422 U.S. 1053). The Supreme Court may reopen a hearing during trial only where, inter alia, the defendant has shown "that additional pertinent facts have been discovered by the defendant which he [or she] could not have discovered with reasonable diligence before the determination of the motion" (CPL 710.40). Here, the new facts upon which the defendant based his application were the circumstances surrounding his arrest, of which he is presumed to have knowledge (see, People v. Hankins, 265 A.D.2d 572; People v. Adams, 224 A.D.2d 433, 434; People v. Toxey, 220 A.D.2d 204, 205; People v. Mitchell-Benitez, 168 A.D.2d 994).
Upon the exercise of our factual review power, we find that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).