ADA, Kings County District Attorney Office, Anna Tse, Esq., Assistant District Attorney, Brooklyn.
Natali J. Todd, Esq., Law Offices of Natali J.H. Todd, Brooklyn.
MATTHEW A. SCIARRINO JR., J.
The People may use the defendant's refusal to take a Blood
Alcohol Content (BAC) test offered over two hours from arrest at the trial of the defendant, and the court's earlier decision is so modified.
The defendant, David Harvin, is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL § 1192 ) and other related charges. On April 17, 2013, a hearing was held before Judicial Hearing Officer (JHO) Robert Strauss. At the conclusion of the hearing, JHO Strauss recommended this court find that there was probable cause to arrest the defendant; that any statements the defendant made were voluntary beyond a reasonable doubt; and that the defendant's motion to suppress evidence of the defendant's refusal to submit to an Intoxylizer test should be granted because it was in excess of two hours from the [969 N.Y.S.2d 852] defendant's arrest. The People failed to make any argument about the applicability of the two-hour rule at that hearing or after the hearing in a post-hearing memorandum. This court affirmed the recommendations of JHO Straus in a May 22, 2013 decision. The People then moved to reargue this court's decision, asserting that evidence of the refusal should not be suppressed. The defendant opposed the motion.
A motion for leave to reargue made pursuant to CPLR § 2221 is left to the discretion of the court, and " is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" ( see, Foley v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 [1st Dept. 1979]; see also, Llana v. Town of Pittstown, 245 A.D.2d 968, 970, 667 N.Y.S.2d 112 [3rd Dept. 1997], appeal denied, 91 N.Y.2d 812, 672 N.Y.S.2d 848, 695 N.E.2d 717 ; Ebasco Constructors, Inc. v. A.M.S. Construction Co., Inc., 195 A.D.2d 439, 440, 599 N.Y.S.2d 866 [2nd Dept. 1993]; Pro Brokerage, Inc. v. Home Insurance Company, 99 A.D.2d 971, 472 N.Y.S.2d 661 [1st Dept. 1984] ). It is not to serve as a vehicle through which an unsuccessful party reargues the questions previously decided ( see, Foley v. Roche, supra at 567, 418 N.Y.S.2d 588; Pro Brokerage, Inc. v. Home Insurance Company, supra ).
In this case, the People did not present any new facts, but rather argued the law. Therefore, a motion to reargue is the proper vehicle for the relief that the People seek. The motion to reargue is granted and upon that reargument the court's prior decision is modified.
On March 4, 2012, at approximately 2:57 A.M., two police officers on car patrol observed the defendant driving a 2003 Mercedes Benz ML320, New York State license plate ENB1930, at a
high rate of speed through a steady red light at an intersection. After pursuing the defendant's vehicle for approximately half a mile, the police pulled the defendant over. After approaching the vehicle's driver's side, one officer observed the defendant exhibiting signs of intoxication, including red watery eyes, the odor of alcohol on his breath, and an unsteady gait. The defendant told the officer that he had just left the Essex Bar and Lounge.
At approximately 3:21 A.M., the defendant was placed under arrest and transported to the 78th Precinct. At approximately 5:50 A.M., the defendant was asked to submit to a chemical test of his breath. He refused. The defendant was given several clear and unequivocal warnings of the legal consequences of his refusal to take the test, including that the refusal could be used against him in court. However, he still persisted in his refusal. The defendant's refusal was recorded on video at the 78th Precinct. ...