People v. Martinez

Order, Supreme Court, New York County (Micki Scherer, J.), entered on or about June 3, 1996, which granted defendant’s motion to suppress physical evidence, unanimously affirmed. According due deference to the hearing court’s findings of fact and credibility, there is no basis for disturbing the court’s [457] determination that the stop in this case was pretextual (see, People v Prochilo, 41 NY2d 759, 761-762). The court’s application of a subjective test for determination of the legality of the stop is in accordance with previous decisions of this Court (see, e.g., People v Rijo, 220 AD2d 217, lv denied 88 NY2d 852; People v Laws, 213 AD2d 226, lv denied 85 NY2d 975). The holding of the United States Supreme Court in Whren v United States (517 US 806) does not compel a contrary result (see, People v Scott, 79 NY2d 474, 496-497). Concur—Milonas, J. P., Ellerin, Wallach and Rubin, JJ.