Considered: Notice of motion for leave to reargue motion for a buccal swab, and supporting papers; Opposition to motion to renew or reargue and to compel a saliva sample for DNA analysis. On December 22, 2020, the court denied the People’s motion for an order directing the defendant to submit to the taking of saliva and buccal cell samples from his body. The People seek leave to reargue their motion. Introduction The defendant is alleged to have put his tongue to the buttocks of the complainant on the stairs of a subway station on or about April 18, 2020. By a superseding information sworn to on October 8, 2020, the defendant is charged with forcible touching (Penal Law §130.52[1]) and sexual abuse in the third degree (Penal Law section §130.55). According to the superseding information, the defendant was identified through a match of DNA taken from the complainant’s jeans to a DNA profile of the defendant obtained as a result of a prior conviction. By motion filed shortly after the filing of the superseding information, the People sought an order directing the defendant to submit to the taking of saliva and buccal cell samples from his body. Even though the People asserted in their motion that they were notified that there was a “match” between a profile associated with the defendant and the sample taken from the complainant’s jeans (Affirmation of Assistant District Attorney Monica Rao at 5), they sought the buccal and saliva cell sample from the defendant so it, too, could be compared with the sample taken from the complainant’s jeans. In support of the motion, the People submitted, and quoted from, a letter sent by Jill M. Dooley, Ph.D., the Director of the Office of Forensic Services of the New York State Division of Criminal Justice Services. In that letter, Dr. Dooley stated that there was an “association” of the specimen submitted for comparison and a specimen tied to the defendant. Dr. Dooley also stated that “[i]f legal action is anticipated based on this information, it is strongly recommended that a new DNA specimen be collected from the named individual. This new DNA specimen should then be submitted to your laboratory for appropriate confirmatory analysis” (Letter from Jill M. Dooley, dated July 16, 2020). The defendant opposed the People’s motion, inter alia, on the ground that the People already had the defendant’s DNA on file and thus had the ability to compare it to the DNA taken from the complainant’s jeans (Affirmation of Maggie Taylor at 10). By order dated December 22, 2020, this court denied the People’s motion, relying on People v. [Gonzalez] (2018NY029511, at 2-3 [Crim Ct NY County 2018] [Badamo, J.]). In Gonzalez, the court denied the People’s motion for a buccal swab, holding, in part: “Given that defendant’s DNA profile already exists and matches the evidence from the bus, the People fail to demonstrate that obtaining buccal cells and saliva would not be duplicative and cumulative or the importance and probable worth of such evidence” (id.). By notice of motion dated January 13, 2021, the People seek leave to reargue their motion. The People contend that reargument is appropriate because they “believe the Court was unaware of the procedures involved in obtaining and testing convicted offender samples, the evidentiary obstacles and prejudice to defendant in proving chain of custody of those samples at a trial in Criminal Court, and the scientific significance of DCJS’ direction to obtain and test an additional swab to confirm the accuracy of the SDIS DNA match of defendant’s DNA to the DNA left on evidence…(Affirmation of Assistant District Attorney Melissa Mourges at 9). The People also set forth, and explain, the procedures involved in the testing and matching of DNA profiles, and the difficulties in introducing that evidence at a trial. The People had not presented those facts to the court in their original motion papers. The defendant opposes the People’s reargument motion, characterizing it as a motion for leave to reargue or renew the original motion (Affirmation of Maggie Taylor). Discussion A party seeking reargument is contending that the court erred: a reargument motion “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). By contrast, renewal, a related, but different, procedural vehicle for bringing an already-decided issue back before the court, is based on matter that was not presented to the court when it first heard the motion: a motion for leave to renew “shall 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” (CPLR 2221[e][2]). A party seeking leave to renew must also provide “reasonable justification for failure to present such facts on the prior motion” (CPLR 2221[e][3]). Renewal “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Gibbs v. Kings Harbor Health Servs., 190 AD3d 586, 587 [1st Dept 2021]). Although, ordinarily, a motion to renew should be based on new facts, renewal is flexible, and a court retains the discretion to grant renewal on facts known to the movant when it made the motion originally, if granting renewal would be in the interest of justice (see Global Liberty Ins. Co. v. Laruenceau, 187 AD3d 570, 571 [1st Dept 2020]; Kaszar v. Cho, 160 AD3d 501, 502 [1st Dept 2018]), or if the party submitting the new material provides a reasonable explanation for not submitting those already-known facts initially (see San Lim v. MTA Bus Co., 190 AD3d 493, 494-495 [1st Dept 2021]; Sullivan v. Harnisch, 100 AD3d 513, 514 [1st Dept 2012]). It has not been conclusively determined whether CPLR 2221 is applicable in criminal cases (see People v. DeFreitas, 48 Misc 3d 569 [Crim Ct NY County 2015]), but that is of no matter. Courts have inherent power to correct their own mistakes, so “reargument” is available, regardless of the applicability of CPLR 2221 to criminal proceedings (see People v. Godbold, 117 AD3d 565, 566 [1st Dept 2014]; People v. Baptiste, 70 Misc 3d 706, 708 [Crim Ct NY County 2020]; People v. Jones, 57 Misc 3d 590, 592-593 (Crim Ct Kings County 2017); People v. DeFreitas, 48 Misc 3d at 576-577), as is renewal (see Godbold, 117 AD3d at 566). Here, the facts upon which the People seek leave to “reargue” were not before the court in the first instance, so reargument does not lie (cf. Scordio Constr., Inc. v. Sirius Am. Ins. Co., 31 AD3d 768, 769 [2d Dept 2008] [appellant, by raising new facts, sought renewal]). Accordingly, the People’s request for leave to reargue will be denied. Courts are not bound by the labels litigants give to their motions and are free to categorize them properly (see Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C2221:9B [Note: online version]). The relief the People seek, as the defendant recognizes, is in the nature of renewal, and the defendant contends that leave to renew be denied because the People have not met the standard for renewal (Taylor Affirmation at pp 3-6). It would be unfair to the People to treat their papers as seeking renewal, because, in denominating the relief they seek as “reargument,” the People have not sought to satisfy the requirements of renewal. Specifically, the People have not sought to provide a reasonable justification for their failure to put the facts on which they now rely in their initial motion, or to show why leave to renew is in the interest of justice. Accordingly, the People’s motion for leave to reargue is denied, but the People are free to seek leave to renew, upon a proper showing, if they be so advised. For the foregoing reasons, the People’s motion for leave to reargue their motion for an order directing the defendant to submit to the taking of saliva and buccal cell samples from his body is DENIED. Dated: March 4, 2021
