Papers Submitted:Notice of Motion 1Affirmation in Support 2Affirmation in Opposition 3Memorandum of Law 4Reply Affirmation 5DECISION and ORDER The Defendant is charged with driving while intoxicated, in violation of VTL §§1192(3).By Notice of Motion dated February 2, 2019 the Defendant moved for an order (1) suppressing any evidence obtained as a result of the execution of a search warrant connected with this case; and, (2) suppressing any laboratory test results of the Defendant from the hospital in which he was a patient, including blood samples. In so moving, the Defendant alleged, inter alia, that, while provided with a copy of the subject warrant, “the People have failed to disclose any affirmations in support of such warrant.” (Johnston Affirmation 2/8/19, 10) Nevertheless, the Defendant went on to argue that “that there was no probable cause for the issuance of the search warrant.” (Johnston Affirmation 2/8/19, 13) The Defendant asked that the People annex the affidavits/affirmations which were submitted in support of the search warrant to their opposition to the Defendant’s motion, so that the Defendant may specifically address these documents.By an affirmation and Memorandum of Law dated March 15, 2019, the People opposed the Defendant’s motion. As Exhibit 4, the People annexed to their opposition papers the Affirmation in Support of a Search Warrant of A.D.A. Alexandra Wolff. The People then argued, inter alia, that the warrant in question is presumed valid, and that A.D.A. Wolff’s affirmation provided the requisite probable cause.In a reply dated April 16, 2019, having reviewed A.D.A. Wolff’s affirmation, after noting that the People were seeking the blood samples of “Trauma Gillsville,” the Defendant argued that the “People do not give any explanation in their application for a warrant as to how the blood under a different name is related to the Defendant, Ronald Tarry…There was no information provided to the Court as to how or why the blood samples would be under a different name than the defendant.” (Johnston Affirmation 5/16/19)By a Decision and Order dated May 8, 2019 this court (Engel, J.) granted the Defendant’s motion to controvert the warrant and to suppress the blood recovered under the name of Trauma Gillsville, along with the results of any tests performed on said blood. The basis for the court’s decision was that the affirmation submitted in support of the search warrant failed to contain “any factual representation that blood, serum and urine was obtained from the Defendant under the name of Trauma Gillsville, or even from where this latter name was obtained. In fact, there are no allegations of fact that blood, serum and urine were obtained from the Defendant, under either name.” (Decision and Order 5/8/19, p. 4) In so finding, the court noted that the affirmation submitted in support of the search warrant, as provided to the court as Exhibit 4 annexed to the People’s opposition papers, did not contain a Page 4.The People, by Notice of Motion dated June 7, 2019, now move for leave to reargue and/or renew the prior motion.REARGUETimelinessPreliminarily, the People proffer that their motion to reargue is timely. The People argue that they have complied with the “Criminal Procedure Law and Rules (“CPLR”)1 §2221(d)” (Lazzaro Affirmation 6/7/19, p. 6) because “the instant motion has been filed with the Court within the requisite 30 days.” (Lazzaro Affirmation 6/7/19, p. 6)Addressing the timeliness issue, the Defendant argues that the People have not complied with the requirements of the CPLR for the bringing of a motion to reargue. Relying on People v. Merly, 51 Misc.3d 858, 31 N.Y.S.2d 751 (Sup. Ct. Bronx Co. 2016), the Defendant argues that the thirty days within which the People may have brought their motion to reargue began to run when the court delivered a copy of its Decision and Order to the parties on May 8, 2019. Noting that the People did not file their present motion until June 10, 2019, the Defendant posits that the People’s motion is three days late.The Defendant’s reliance on People v. Merly, id. is misplaced, Contrary to the belief of the parties, “[w]ith rare exceptions (e.g. CPL 60.10), the CPLR is inapplicable to criminal proceedings (citations omitted).” People v. Manupelli, 22 Misc.3d 67, 68, 877 N.Y.S.2d 599 (App. Term 9th & 10th Jud. Dists. 2008); See also: People v. Cullen, 56 Misc.3d 45, 55 N.Y.S. 3d 584 (App. Term 9th & 10th Jud. Dists. 2008); People v. Lamont, 144 A.D.3d 1330, 40 N.Y.S.3d 796 (3rd Dept. 2017) “This is especially true in the absence of any express reference to the CPLR in CPL 190.50(5) and in view of the Court of Appeals’ practice of interpreting CPL provisions in accordance with the CPL’s statutory scheme and without resort to the CPLR (see, People v. Coaye, 68 N.Y.2d 857, 858-59, 508 N.Y.S.2d 410, 501 N.E.2d 18 & fn.).” People v. Crisp, 268 A.D.2d 247, 700 N.Y.S.2d 693 (1st Dept. 2000) lv. den. 94 N.Y.2d 946, 710 N.Y.S.2d 2 (2000)In the criminal context, to be timely, a motion to reargue must be made before a party’s Notice of Appeal has expired. See: People v. Hernandez, 255 A.D.2d 112, 681 N.Y.S.2d 488 (1st Dept. 1998); People v. Smith, 8 Misc.3d 441, 796 N.Y.S.2d 223 (Dist. Ct. Nassau Co. 2005) As such, the time limitations of CPL §460.10 control. In relevant part, that section provides:1(a) A party seeking to appeal…from an order of a criminal court not included in a judgment, must,…within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court…in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court.Thus, it can be seen that the time to bring a motion to reargue in the criminal context will begin to run upon the service of the subject order upon the moving party; and, the time to so move will expire thirty days thereafter. See: People v. Wooley, 40 N.Y.2d 699, 389 N.Y.S.2d 809 (1976)Contrary to the Defendant’s argument, a party’s time to appeal, and concomitantly move to reargue, is not triggered by the court delivering a copy of its order to the parties. See: People v. Jones, 22 N.Y.3d 53, 977 N.Y.S.2d 739 (2013) Contrary to the Defendant’s argument, and People v. Merly, supra., upon which he relies, the Court of Appeals has made clear that the provisions of CPL §460.10(1)(a) “require[s] prevailing party service in order to commence the time for filing a notice of appeal (citations omitted).” People v. Washington, 86 N.Y.2d 853, 854, 633 N.Y.S.2d 476 (1995); See also: People v. Spencer, 145 A.D.3d 1508, 45 N.Y.S.3d 723 (3rd Dept. 2016); People v. Aubin, 245 A.D.2d 805, 666 N.Y.S.2d 778 (3rd Dept. 1997) There being neither a claim, nor any proof, that the Defendant, the prevailing party herein, ever served the People with a copy of the subject Decision and Order, the People’s time to file a notice of appeal has not expired [See: CPL §460.10(1)(a)]; and, the People’s motion to reargue is timely. See: People v. Schultz, 283 A.D.2d 525, 724 N.Y.S.2d 885 (2nd Dept. 2001); People v. South, 29 Misc.3d 92, 912 N.Y.S.2d 837 (App. Term 9th & 10th Jud. Dists. 2010)The above notwithstanding, even if the People’s time to appeal and move to reargue were triggered by the court’s delivery of the subject Decision and Order to the parties, the People’s motion to reargue would still be timely. A motion is made when it is served, not filed. See: Russo v. Eveco Development Corp., 256 A.D.2d 566, 683 N.Y.S.2d 566 (2nd Dept. 1998); Rivera v. Glen Oaks Village Owners, Inc., 29 A.D. 3d 560, 817 N.Y.S.2d 293 (2nd Dept. 2006); Pietrafesa v. Canestro, 130 A.D.3d 602, 13 N.Y.S.3d 204 (2nd Dept. 2015) Where, as here, service of the motion is made by mail, service is complete upon mailing; and, “[a] properly executed affidavit of mailing raises a presumption that proper mailing occurred (citations omitted).” Ortega v. Trefz, 44 A.D.3d 916, 845 N.Y.S.2d 73 (2nd Dept. 2007)In the matter sub judice, the parties agree that the court distributed the subject Decision and Order on May 8, 2019. The People’s present motion contains the duly executed affidavit of a Rose Murphy attesting to the fact that she mailed the People’s motion to defense counsel on June 7, 2019. Even under this scenario, the People’s motion to reargue is timely.MeritsMotions to reargue are to be based upon the papers previously submitted; and, it is inappropriate to consider new evidence. Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914 (1928); People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623 (1987); People v. Ramos, 108 A.D.2d 209, 488 N.Y.S.2d 762 (2nd Dept. 1985) A motion to reargue is addressed to the discretion of the court and may be granted where it is shown that the court has overlooked or misapprehended the facts or misapplied the law or for some other reason improperly decided the prior motion. CPLR §2221(d)(2); Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 (1st Dept. 1979); Collins v. Stone, 8 A.D.3d 321, 778 N.Y.S.2d 79 (2nd Dept. 2004); People v. Oceanside Institutional Industries, Inc., 15 Misc.3d 22, 833 N.Y.S.2d 350 (App. Term 9th & 10th Jud. Dist. 2007)While acknowledging that the affirmation submitted in support of the search warrant, which they provided to this court as Exhibit 4 in their prior opposition papers, did not contain a Page 4, the People argue that the court, in granting the Defendant’s motion, overlooked or misapprehended that the affirmation submitted to Judge Helene Gugerty in support of the search warrant actually did contain a Page 4, and that that page “includes the necessary information referring to the blood, serum, and urine obtained from the defendant, under the name ‘Trauma Gillsville.’” (Lazzaro Affirmation 6/7/19, p. 7)The People then seek to explain how the court overlooked or misapprehended a document which was never included in the motion papers submitted to this court upon the submission of the prior motion. The People allege that, “Upon responding to the defendant’s motion, the People determined that the Affirmation in Support of a Search Warrant that the People possessed, received and stamped by the Nassau County Court Chief Clerks’ Office on October 31, 2018, did not include page 4.” (Lazzaro Affirmation 6/7/19, p. 4) The People further claim that, on March 30, 2019, they then obtained a copy of Page 4 from the “Warrants Assistant District Attorney who drafted the search warrant.” (Lazzaro Affirmation 6/7/19, p. 4) The People then mailed a copy of that Page 4 to counsel for Defendant and, on March 31, 2019, filed a copy of the letter to counsel and Page 4 with the Clerk of the Nassau County District Court. The People further suggest that following a conference on April 4, 2019, they obtained information regarding Trauma Gillsville; and, on April 12, 2019 advised defense counsel that “a trauma patient is admitted to the hospital under a trauma name and a placeholder date of birth until the condition of the defendant and/or process of treatment is at an appropriate stage to obtain pedigree information.” (Lazzaro Affirmation 6/7/19, p. 5) The People also claim that this information was conveyed to the court on April 16, 2019 and refer to their Exhibit 5 in support thereof. The court notes that Exhibit 5 consists of a photocopy of a handwritten “Post-it” note which was never given to this court and never included in the previous motion papers.In opposition, the Defendant argues that Page 4 of the affirmation submitted in support of the search warrant application was not contained in the People’s opposition to his motion. While the Defendant does not address the People’s new information, he notes that at no time did the People seek permission of the court to serve and file a sur reply affirmation providing this missing information.The court is hard pressed to understand how it overlooked or misapprehended a document and information which was never placed before the court upon the submission of the prior motion. The court had provided the parties with a motion schedule for the filing and ultimate submission of all papers relevant to the prior motion. On April 16, 2019, in accordance with that schedule, the court confirmed that it had all of the parties’ papers and marked the motion submitted. That submission consisted of the following papers: Defendant’s Notice of Motion, the Affirmation of Karen E. Johnston, Esq. dated February 8, 2019, with one exhibit attached; the Affirmation of Shaunna D. Lazzaro, Esq. dated March 15, 2019, with a Memorandum of Law and five exhibits attached; and, the Reply Affirmation of Karen E. Johnston, Esq. dated April 16, 2019. Conspicuously absent from the papers submitted on that motion was Page 4 of the affirmation in support of the subject search warrant upon which the People presently rely.The People’s providing defense counsel with a copy of Page 4 prior to the motion submission date does not make that page part of the motion record. Likewise, the People’s filing of a copy of their cover letter to counsel, along with Page 4, with the Clerk’s office does not make that page part of the motion record; nor does it even alert this court that the document has been filed. The Clerk merely accepts the document and eventually places it in the court file.The People’s attempt to submit this page without leave of the court, by simply file filing a copy with the clerk’s office, was improper. McMullen v. Walker, 68 A.D.3d 943, 892 N.Y.S.2d 128 (2nd Dept. 2009); Gao v. City of New York, 145 A.D.3d 939, 43 N.Y.S.3d 493 (2nd Dept. 2016) This is simply “sloppy practice threatening the integrity of our judicial system.” Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261 (2004) As the Court of Appeals “has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice (citations omitted).” Gibbs v. St. Barnabas Hospital, 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68 (2010)If the People wished this document to become part of the motion record, and presented to the court, the People could have sought leave from the court to file a sur-reply affirmation submitting same. cf. Ostrov v. Rozbruch, 91 A.D.3d 147, 936 N.Y.S.2d 31 (1st Dept. 2012); U.S. Bank Trust, N.A. v. Rudick, 156 A.D.3d 841, 67 N.Y.S.3d 646 (2nd Dept. 2017) Given the fact that the People had provided this document to defense counsel, and defense counsel did not see fit to make reference to its existence or contents in the Defendant’s reply, such an application would have been appropriate.As indicated hereinabove, a motion to reargue is to be based upon the papers previously submitted; and, it is inappropriate to consider new evidence. The People’s present submission of Page 4 and allegations concerning conversations among counsel and the court constitute such new evidence not previously before the court on the Defendant’s prior motion.Accordingly, that branch of the People’s motion seeking to reargue the Decision and Order dated May 8, 2019 is denied.RENEWA motion to renew is to be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion. See: Riccio v. DePeralta, 274 A.D.2d 384, 711 N.Y.S.2d 17 (2nd Dept. 2000); Rush v. County of Nassau, 24 A.D.2d 560, 806 N.Y.S.2d 232, (2nd Dept. 2005); Yarde v. New York City Transit Authority, 4 A.D.3d 352, 771 N.Y.S.2d 185 (2nd Dept. 2004).The People argue that the new facts, (Page 4 of the affirmation submitted in support of the search warrant), were not previously offered on the prior motion for two reasons. “First, the defendant’s Notice of Motion, dated February 11, 2019, failed to include any argument and/or information regarding the name ‘Trauma Gillsville.’…Second, the People respectfully assert that any information regarding the connection between Trauma Gillsville and the defendant Ronald Tarry, was conveyed to both the defense and the Court at multiple bench conferences.” (Lazzaro Affirmation 6/7/19, p. 8-9) The court also notes that the People suggest that the new facts were not before the court upon the submission of the original motion because they filed the page containing the new facts with the Clerk’s office, without ever indicating that they were seeking to have them considered on the original motion.In opposition, the Defendant points out that the missing Page 4 does not constitute “new evidence,” as it was neither unknown nor unavailable to the People at the time of the original motion. The Defendant further avers that, while he did not specifically raise the issue regarding the name Trauma Gillsville in his original moving papers, he did not do so because the People had not provided the affirmation submitted in support of the search warrant application prior to the motion being made. Moreover, the Defendant argues that it was the People who annexed the affirmation in support of the search warrant to their opposition papers on the prior motion, omitting Page 4; and, the Defendant addressed the submitted affirmation in his reply papers.While the Defendant is generally correct, that a proper motion to renew “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court[,]” Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588 (1st Dept. 1979); See also: People v. Clark, 39 Misc. 3d 127(A), 971 N.Y.S.2d 73 (App. Term 9th & 10th Jud. Dists. 2013); Coira v. Windortech, LLC, 42 Misc.3d 138(A), 986 N.Y.S.2d 865 (App. Term 9th and 10th Jud. Dists. 2014), a motion to renew “ may…be based on facts known to the party seeking renewal at the time of the original motion, but ‘the movant must set forth a reasonable justification for the failure to submit the information in the first instance’ (citations omitted).” Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 797, 22 N.Y.S.3d 106, 108 (2nd Dept. 2015); See also: Kweku v. Thomas, 144 A.D.3d 1109, 42 N.Y.S.3d 261 (2nd Dept. 2016); Castor v. Cuevas, 137 A.D.3d 734, 26 N.Y.S.3d 564 (2nd Dept. 2016) New facts may be facts contained in a document not considered by the court “because the documents was not in admissible form (citations omitted).” Schwelnus v. Urological Associates of L.I.P.C., 94 A.D.3d 971, 972, 943 N.Y.S.2d 141 (2nd Dept. 2012); See also: Defina v. Daniel, 140 A.D.3d 825, 33 N.Y.S.3d 421 (2nd Dept. 2016)As indicated hereinabove, the facts contained in Page 4 of the affirmation submitted in support of the search warrant application were never considered by the court because the People failed to properly submit that page to the court upon submission of the Defendant’s original motion. While the People believed that filing a copy of this page with the office of the Clerk of the Court would somehow get the page before the court, without it ever having been provided to the court upon the submission of the Defendant’s motion, this was due to the People’s failure to understand and abide by proper motion practice and procedure. Clearly, the People’s intention was to have the court consider Page 4; they just did not know how to properly get it before the court on the prior motion. The court finds that this “law office failure…constituted a reasonable justification (see Defina v. Daniel, 140 A.D.3d 825, 826, 33 N.Y.S.3d 421, Castor v. Cuevas, 137 A.D.3d 734, 734, 26 N.Y.S.3d 564; Hackney v. Monge, 103 A.D.3d 844, 845, 960 N.Y.S.2d 176).” People v. Trigoso, 150 A.D.3d 1041, 1043, 55 N.Y.S.3d 130, 133 (2nd Dept. 2017)Accordingly, the court grants that branch of the People’s motion to renew the Defendant’s prior motion to suppress any evidence, including laboratory test results and blood samples obtained as a result of the execution of a search warrant connected with this case; and, upon renewal, the court hereby denies suppression.As indicated hereinabove, the basis for the court’s original decision was that the affirmation submitted in support of the search warrant failed to contain “any factual representation that blood, serum and urine was obtained from the Defendant under the name of Trauma Gillsville, or even from where this latter name was obtained.” (Decision and Order 5/8/19, p. 4) Page 4 of the affirmation submitted in support of the search warrant, now before and considered by the court, Clarifies this crucial issue.In pertinent part, this page alleges that the Defendant “was admitted to NUMC under the name Trauma Gillsville, under medical record number 1838706H;” that “Dr. Cecila Cordova ordered blood to be drawn from [Defendant] for medical purposes;” that blood was received in the laboratory; and, that “All tubes are labeled trauma gillsville, M, DOB: 01/01/1901, Medical Record # 1838706H[.]” These facts provided probable cause to believe that the blood labeled as the blood of Trauma Gillsville, sought by the People in the warrant, was the blood of the Defendant, Ronald Tarry.Accordingly, upon renewal, the Defendant’s motion to controvert the search warrant and to suppress the blood recovered under the name Trauma Gillsville, and the results of any tests performed thereon, is denied.This constitutes the decision and order of the court.Dated: July 25, 2019Hempstead, New York
