AMENDED DECISION AND ORDER The Court’s decision captioned “Decision and Order” dated and ordered on August 3, 2023 is hereby vacated and amended to correct some of the factual recitation. The balance of the decision remains the same. This court rendered a decision dated July 17, 2023, finding the grand jury minutes sufficient. The defendant timely filed a motion to re-argue on August 2, 2023. A motion for leave to reargue pursuant to CPLR §2221 (d)(2) is addressed to the sound discretion of the court (Grimm v. Bailey, 105 AD3d 703, 704 [2d Dept 2013]; People v. Rodriguez, 21 AD3d 838 [1st Dept 2005]; People v. Harrington, 193 AD2d 756 [2d Dept 1993]). It must “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 or law not offered on the prior motion” (CPLR §2221 [d][2]); People v. D’Alessandro, 13 NY3d 216, 219 [2009]). Thus, “[a] motion for leave to reargue ‘is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented’” (Haque v. Daddazio, 84 AD3d 940, 942 [2d Dept 2011], quoting Mazinov v. Rella, 79 AD3d 979, 980 [2d Dept 2010]). The defendant has not put forth any new arguments or submitted any new facts that this court did not already consider when reviewing the grand jury minutes. The defendant relies on People v. Lendof-Gonzalez, 36 NY3d 87 (2020). In that case, the Court of Appeals held that passing notes to another inmate in jail which discussed a plan to murder the defendant’s wife and mother-in-law did not constitute an attempt to murder those individuals, since it never went beyond the planning stage. The defendant also cites People v. DiStefano, 38 NY2d 640 (1976), a case where a telephone call discussing a plan to commit a robbery did not constitute an attempted robbery without an overt act which furthered the plan to commit the crime. The defendant here is charged with Attempted Bribing a Witness (PL §110/215.00) and Tampering with a Witness in the Fourth Degree (PL §215.10[A]). Both charges require that the defendant attempt to alter a witness’ testimony through some sort of inducement. An “attempt” occurs when, with intent to commit a crime, a defendant engages in conduct which tends to effect the commission of such a crime. PL §110. It was alleged before the grand jury that the defendant called an associate, Keith James, and encouraged them to speak to an unnamed witness in a pending murder case against the defendant in order to deter that witness from testifying. It was also alleged that the defendant mailed a letter to that associate, instructing him to “show to JuJu only in person.” The letter contains instructions on what to say to the witness to persuade him not to testify, and how to advise the witness as to what he could say to authorities to get out of participating in the case. In the letter, the defendant explicitly offers the complaining witness money in exchange for his compliance. Keith James was found by police in possession of the letter. Unlike the precedent cited by the defendant, the communications in this case were such that they actually tended to effect the commission of the crime. Both the letter and calls in question were examined by the Grand Jury who voted to indict the defendant. Accordingly, the evidence presented was legally sufficient to establish the offenses charged, and there was reasonable cause to believe that the defendant committed the indicted offenses (People v. Pelchat, 62 NY2d 97 [1984]; People v. Calbud, Inc., et al., 49 NY2d 389 [1980]; People v. Swamp, 84 NY2d 725 [1995]). Accordingly, it is hereby: ORDERED, that the defendant’s motion to reargue is denied. This matter is next on August 15, 2023, in Part 15. The foregoing constitutes the decision and order of the court. Dated: August 3, 2023
