AMENDED DECISION AND ORDER By Misdemeanor Information filed on March 12, 2018, defendant was charged with two counts of Criminal Possession of a Weapon in the Fourth degree (PL 265.01), Menacing in the Second Degree (PL 120.14), and other related charges. On or about May 31, 2018, this Court following a suppression hearing, orally granted Defendant’s motion to suppress the noticed statements in the instant case. By motion filed July 10, 2018 the People moved to reargue this Court’s decision to suppress the noticed statements. The Defendant filed its opposition on July 16, 2018.At the Huntley hearing the People called Mount Vernon Police Officer Subryan who testified that on March 12, 2018, he interviewed the defendant after placing him in custody during a menacing investigation. The interview took place at a small interior room in the Mount Vernon Police Department. The entire interview was videotaped. The videotape was offered and received into evidence. In the video, Officer Subryan after informing the defendant that he had a right to remain silent, then slid a Miranda waiver form to the defendant and told him to sign before speaking to him. The defendant is observed on the video to be reading the document, and is shortly directed by Officer Subryan where to sign, and where to place his initials on the document. After the defendant signs and initials the document, the officer then asks the defendant to tell him what happened on the day in question. Defendant then stated, in sum and substance, that he was involved in a fight with the victim, at the subject time, place and date, however, he denied possessing a firearm during the altercation.At the outset, this court notes that nothing contained in the CPL provides for leave to reargue. But the CPLR does, and this court is constrained to follow it. CPLR 2221 affords a defendant a process by which they may challenge a court’s decision, but only where the court “overlooked or misapprehended” the law. CPLR 2221, however, has several procedural requirements that must be met before a court may consider the merits of a motion to reargue (see People v. Raglin, 175 Misc 2d 1009 (Crim Ct, Queens County 1998).Specifically, CPLR 2221(d)(3) expressly requires that a motion to reargue be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry (Connors, 2014 Practice Commentaries, Mckinney Cons. Law NY, CPLR §2221). Motions seeking leave to reargue filed after the thirty-day period enunciated in CPLR 2221, or after the time to take appeal has expired, are untimely (see Benitez v. City of New York, 2 A.D.3d 285, 769 N.Y.S.2d 258 [1st Dept.2003]; Lynch v. Williams, 265 A.D.2d 870, 695 N.Y.S.2d 855 [4th Dept. 1999]).As noted, this court rendered its oral decision on defendant’s suppression motion on May 31, 2018. Neither party, however, served a copy of that decision with notice of entry. Generally, notice of entry is a civil practice procedure not commonly used in criminal matters (see People v. Coaye, 68 NY2d 857 [1986]; People v. Walters, 46 Misc 3d 295 [Crim Ct, Bronx County 2014, Whiten, J.]). Unlike in civil proceedings, appearances in court on criminal cases are routine, and parties are often orally informed by the court of its decision on the record. Both parties are immediately placed on notice of the court’s decision when it is distributed, orally and/or in writing. Hence, the formality of service with notice of entry in criminal cases appears largely superfluous (see People v. Merly, 51 Misc3d 858 [Sup Ct, Bronx County 2016, Price, J.]).As such, the time limitation contained in CPLR 2221(d)(3), when dealing with a final decision in a criminal matter, should commence from the date it is rendered to the parties. To hold otherwise would militate against the need to expeditiously resolve criminal cases by enabling a party to indefinitely seek leave to reargue (see People v. Coaye, 68 NY2d 857 [1986]; People v. Walters, 46 Misc 3d 295 [Crim Ct, Bronx County 2014, Whiten, J.]). Thus, while applying the CPLR is generally encouraged, it makes little sense to do so where the purpose and function of criminal practice is frustrated. Given, then, that the decision on defendant’s omnibus motion was rendered to the parties on May 31, 2018, the prosecutor was to have filed the instant motion by June 30, 2018. As noted, he filed it on July 10, 2018, 40 days later. Accordingly, the prosecutor’s motion is untimely.That said, however, the Court would be remiss if it did not discuss the important question of whether the suppression of the defendant’s statements on the ground that they were involuntary, is contradicted by case law.While this Court in its oral decision after the Huntley hearing ruled that police are required to orally read the Miranda warnings to suspects in custody, this Court now agrees with the People that the landmark decision in Miranda v. Arizona (384 US 436 [1966]) contains no express articulation that the warnings required must be provided orally to the accused. To be sure, the accused must be informed in “clear and unequivocal terms” (id. at 467-468) that he or she has certain rights. “There is [absolutely] no rule, statutory or otherwise, requiring that [such] warnings be read to a suspect” (see People v. Peraza, 288 AD2d 689, 690 [2001], Iv denied 97 NY2d 707 [2002]). The preeminent concern is that effective means are employed to notify an individual of his or her rights (see Miranda v. Arizona, supra at 479).The People contend that this Court either overlooked or misapplied the law and suppressed the noticed statements. The People’s main argument is that the defendant was apprised of his rights in clear and unequivocal language, in accordance with the seminal case of Miranda v. Arizona, 384 US 436 (1966), when he was provided a Miranda form containing his rights, executing a written waiver and agreeing to speak with police.The question whether a defendant has effectively waived his or her Miranda rights must be determined on the particular facts and circumstances surrounding a case, including the background, experience, and conduct of the accused (North Carolina v. Butler, 441 US 369, 374-375 [1979]). An explicit verbal waiver is not required; an implicit waiver may suffice and may be inferred from the circumstances (People v. Smith, 217 AD2d 221, 234 [4th Dept, 1995] citing North Carolina v. Butler, id., and People v. Goncalves, 288 AD2d 883 [4th Dept, 2001], Iv denied 97 NY2d 729 [2002]). “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived his Miranda rights” (People v. Smith, id., at 234, citing Fare v. Michael C, 442 US 707 at 724, quoting North Carolina v. Butler, id. at 373).Here, the People contend that the defendant implicitly waived his rights and spoke voluntarily to Officer Subryan. The People rely on People v. Sirno, 76 NY2d 967 (1990). In People v. Sirno, id., a detective read defendant a statement of his Miranda rights and proceeded to ask defendant a question. Defendant did not respond, rather, he asked in English if he could see the warnings in Spanish. The detective obtained a card with the Miranda warnings written in Spanish and instructed defendant to read it, record “yes” or “no” after each statement and, if he did not understand, to so indicate. Defendant wrote “yes” next to each statement, did not ask any questions and immediately proceeded to give a statement to the detective. The Sirno court held that the defendant implicitly waived Miranda rights by writing “yes” next to each statement on card with Miranda warnings written in Spanish following defendant’s request to see warnings in Spanish.The facts in the Simo case are distinguishable from the case at bar. Here, Officer Subryan never explained to the defendant that if he did not understand what he was reading in the Miranda waiver form that he could indicate it by recording a “no” after each statement that he didn’t understand. The defendant in this case was merely told to read the Miranda waiver form and to sign and initial the document. As such, there was no meaningful exchange about whether the defendant understood each of his rights as delineated in the Miranda waiver form.Contrary to the People’s contention, the evidence adduced at the suppression hearing was insufficient to establish that the defendant’s statements to Officer Subryan were made after he knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v. Arizona, 384 US 436 [1966]). Although Officer Subryan’s failure to read the Miranda warnings to the defendant did not, in itself, preclude the finding of a valid waiver, the record was devoid of any indication that the defendant clearly understood his Miranda rights as contained in the Miranda waiver form. No effort was made by the inquiring officer as to whether the defendant understood the rights he was waiving. Under these circumstances, this Court finds that the defendant did not implicitly waive his Miranda rights.Accordingly, the People’s motion to reargue is denied in its entirety. This constitutes the Decision and Order of the Court.Dated: July 23, 2018Mount Vernon, New York
