The People, in a motion dated August 3, 2022, seek to renew and reargue the portion of the Court’s decision suppressing physical evidence and statement evidence. The Court grants the People leave to renew and reargue to the extent that it has reviewed the current motion papers submitted by the People, as well as the prior motion practice. After careful consideration, the Court finds that the doctrine of inevitable discovery is inapplicable to the case at bar and declines to disturb its July 18, 2022 decision. Background After a Mapp/Huntley/Dunaway/Wade hearing, the Court issued a decision dated July 18, 2022, which partly granted defendant’s motion to suppress physical evidence and related statement evidence. The Court found that the police had failed to establish the existence of exigent circumstances necessary to perform a warrantless search of defendant’s wallet. As a result, the Court ordered that physical evidence found in the wallet should be suppressed as the fruit of an unlawful search. In addition, the Court held that statements made by defendant directly as the result of that unlawful search were similarly subject to suppression as fruit of the poisonous tree. The Current Motion In a motion dated August 3, 2022, the People move to renew and reargue the portion of the Court’s decision ordering the suppression of physical evidence and statement evidence. The People contend that the doctrine of inevitable discovery mandates a finding that the physical and statement evidence obtained as a result of the unlawful search is not subject to suppression. They argue that, because the physical evidence “in question would have been discovered following the Defendant’s arrest even if” the police had not searched his wallet at the scene of the arrest, such evidence “cannot be suppressed pursuant to the binding precedent of [the] Court of Appeals.” Discussion A motion for leave to renew must be “based upon new facts not offered on the prior motion that would change the prior determination or demonstrate that there has been a change in the law that would change the prior determination,” and must “contain reasonable justification for the failure to present such facts on the prior motion.” CPLR §2221[e]. In addition, such a motion must be based “upon matters of fact or law allegedly overlooked or misapprehended by the court” in determining the case. CPLR §2221[d][2]. However, a motion to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Renna v. Gullo, 19 AD3d 472, 473 [2d Dept 2005]; Rubinstein v. Goldman, 225 AD2d 328, 329 [1st Dept 1996]; see also People v. D’Alessandro, 13 NY3d 216, 219 [2009] ["It is well settled that a motion to reargue is not an appropriate vehicle for raising new questions…which were not previously advanced"]. The decision to grant renewal rests in the discretion of the court. See Eskenazi v. Mackoul, 92 AD3d 828, 828 [2d Dept 2012]. Because the People raise their argument concerning the inevitable discovery doctrine for the first time in this motion, the Court has granted the motion to renew and reargue and considered the People’s contentions. However, the Court finds that the inevitable discovery doctrine does not apply to this case, as the physical evidence seized from defendant’s wallet constitutes “primary evidence.” People v. Henagin, 129 AD3d 864 [2d Dept 2015]. Accordingly, the Court declines to disturb its prior decision. The doctrine of inevitable discovery is a general exception to the exclusionary rule and the Court of Appeals has long held that “evidence obtained as a result of information derived from an unlawful search or other illegal police conduct is not inadmissible where the normal course of police investigation would have inevitably led to such evidence.” People v. Fitzpatrick, 32 NY2d 499, 506 [1973][emphasis added]. However, where “the evidence sought to be suppressed is the very evidence obtained in the illegal search,” it is well settled that the inevitable discovery rule does not apply. People v. Stith, 69 NY2d 313, 318 [1987]; People v. Smith, 98 AD3d 590 [2d Dept 2012]. Thus, so-called “primary evidence,” described by the Court of Appeals as “the very evidence obtained during or as the immediate consequence of the illegal conduct,” is “still be subject to exclusion even if it would most likely have been discovered in the course of routine police procedures.” People v. Turriago, 90 NY2d 77, 86 [1997]; People v. Perez, 88 AD3d 1016 [2d Dept 2011] ["the doctrine of inevitable discovery may not be used to rehabilitate 'primary evidence'"]; People v. Julio, 245 AD2d 158, 159 [1st Dept 1997], appeal denied 91 NY2d 942 [1998] [the likelihood that primary evidence "would have been discovered during an inventory search at the police station, therefore, does not vitiate an illegal search and seizure"]. The rationale for this limitation, the Court has explained, is that application of the inevitable discovery exception to primary evidence “would amount to a post hoc rationalization of the initial wrong” and “an unacceptable dilution of the exclusionary rule.” Stith, 69 NY2d at 319-320. In their motion, the People do not dispute the illegality of the search. Rather, they argue that, regardless of the lawfulness of the seizure of defendant’s wallet, the oxycodone found in the wallet is not subject to suppression because it “would have been discovered following the Defendant’s arrest” pursuant to an inventory search. Such an argument, however, pays no heed to a critical limitation of the inevitable discovery rule: the very evidence obtained during an illegal search must still be suppressed even if it would have been found during a routine inventory search. The Court of Appeals and the Appellate Division have made clear that such primary evidence is not admissible under the inevitable discovery doctrine. See, e.g., Turriago, 90 NY2d at 86; Stith, 69 NY2d at 318; Henagin, 129 AD3d at 866; People v. Julien, 100 AD3d 925, 927 [2d Dept 2012]; People v. Mais, 71 AD3d 1163, 1165 [2d Dept 2010], lv denied 15 NY3d 775 [2010]; People v. Lindsey, 13 AD3d 651, 652 [2d Dept 2004]. Here, as the Court previously found, Detective Chouddery performed a warrantless search of defendant’s wallet without any evidence to support an objectively reasonable belief that defendant was armed, resisting arrest, or attempting to access or destroy evidence. Absent the presence of such exigent circumstances, a warrantless search of the wallet was not permissible. People v. Costan, 197 AD3d 716 [2d Dept 2021], lv denied 37 NY3d 1095 [2021]; People v. Espinoza, 174 AD3d 1062 [3d Dept 2019]; People v. Geddes-Kelly, 163 AD3d 716 [2d Dept 2018]. Because the oxycodone in the wallet was “the very evidence obtained during or as the immediate consequence of the illegal conduct,” it is not inadmissible under the inevitable discovery rule. Turriago, 90 NY2d at 86; Henagin, 129 AD3d at 866. Further, since the search of the wallet was unlawful, it follows that the portion of defendant’s statements concerning the oxycodone, similarly obtained as an immediate consequence of the unlawful search, must be suppressed as fruit of the poisonous tree. Stith, 69 NY2d at 318; People v. Ahmad, 193 AD3d 961 [2d Dept 2021]; People v. Bailey, 164 AD3d 815 [2d Dept 2018]; Lindsey, 13 AD3d at 652; see also Wong Sun v. United States, 371 US 471 [1963]. In sum, the Court affirms its earlier holding that: (1) the contents of defendant’s wallet must be suppressed as the product of an unlawful search; (2) defendant’s statements about the oxycodone must be suppressed as fruit of the poisonous tree; and (3) the fifth count of the indictment must, as a consequence, be dismissed. Having now considered the People’s motion to reargue, the Court further finds that the doctrine of inevitable discovery does not apply because the evidence subject to suppression in this case constitutes primary evidence. Accordingly, the People’s motion for the Court to reconsider its July 18 decision is denied. This constitutes the decision and order of the Court. The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney. Dated: August 17, 2022
