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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Nicholas PERRUCCIO, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, PIGOTT, JR., HURLBUTT and CALLAHAN, JJ. Marcel J. Lajoy, Schnectady, for defendant-appellant. Cindy F. Intschert, Watertown, for plaintiff-respondent.

County Court properly denied the motion of defendant to suppress evidence obtained as the result of a traffic stop of his vehicle.   We reject defendant's contention that the stop was pretextual;  the police were justified in stopping defendant's vehicle for a traffic offense that occurred in their presence while defendant was under surveillance (see, People v. Gadsden, 192 A.D.2d 1103, 597 N.Y.S.2d 256, lv. denied 82 N.Y.2d 718, 602 N.Y.S.2d 815, 622 N.E.2d 316;  see also, People v. McGriff, 219 A.D.2d 829, 631 N.Y.S.2d 969;  People v. Coggins, 175 A.D.2d 924, 573 N.Y.S.2d 760).  The court credited the testimony of two police officers that, absent the traffic offense committed in their presence, they would not have stopped defendant until the search warrant for which they had applied had been issued, and there is no basis to disturb that determination of credibility (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   During the routine traffic stop, one of the officers observed a handgun in plain view through the windshield of the vehicle (see, People v. Beriguette, 84 N.Y.2d 978, 980, 622 N.Y.S.2d 497, 646 N.E.2d 799, rearg. denied 85 N.Y.2d 924, 627 N.Y.S.2d 326, 650 N.E.2d 1328;  People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298).   Because that stop can be sustained under the more stringent New York precedent, we decline to address the People's contention that the stop was objectively valid under the standard set forth in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, (see, People v. Washington, 238 A.D.2d 43, 49, 671 N.Y.S.2d 439, lv. denied 91 N.Y.2d 1014, 676 N.Y.S.2d 142, 698 N.E.2d 971;  People v. Dickson, 180 Misc.2d 113, 690 N.Y.S.2d 390).

Judgment unanimously affirmed.


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