People v Seiman

[*1] People v Seiman 2007 NY Slip Op 51455(U) [16 Misc 3d 1117(A)] Decided on August 1, 2007 District Court, Nassau County St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 7, 2007; it will not be published in the printed Official Reports.

Decided on August 1, 2007
District Court, Nassau County

THE PEOPLE OF THE STATE OF NEW YORK

against

Jeffrey Seiman, Defendant.



21136/06



ADA: Teresa Aiello, Nassau County District Attorneys Office, 99 Main St, Hempstead, NY 11550 (516) 572-2000

Defense Attorney: Brian Griffin, 1205 Franklin Ave., Suite 390, Garden City, NY 11530

(516) 741-1110

Norman St. George, J.

The People move this Court pursuant to C.P.L.R. §2221 to reargue this Court's oral decision dated April 4, 2007. On said date this Court conducted a Huntley/Dunaway/Mapp hearing. The Mapp hearing pertained to the seizure by the Police of drugs allegedly recovered from the Defendant's pants pocket after his arrest, and drugs allegedly seized by the Police from the Defendant's vehicle.

At the conclusion of the hearing this Court ruled as follows:

(A)the People established reasonable suspicion for the stop of the Defendant's vehicle and probable cause for the arrest of the Defendant for Driving While Intoxicated;

(B)the statements allegedly made by the Defendant prior to his arrest were voluntarily given by him prior to his arrest;

(C )the People failed to elicit any testimony as to what the substance was that was allegedly seized by the Police from the Defendant's pants pocket;

(D)the People failed to establish the procedures or protocols followed by the Police with respect to the alleged inventory search of the Defendant's vehicle.

Consequently, this Court suppressed the drugs allegedly seized from the Defendant's person and from the Defendant's car. This Court also suppressed statements made by the Defendant occurring after the inventory search. The Defendant opposes the motion to reargue.

For the reasons that follow, this Court denies the People's request to reargue.

In relevant part C.P.L.R. §2221 provides: (a)"A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order...,(d)A motion for leave to reargue:

1.shall be identified specifically as such;

2.shall be based upon matters of fact or law allegedly overlooked or misapprehended [*2]by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion;" ...

The People fail to indicate in their moving papers any facts or law which they contend that this Court overlooked or misapprehended. First, the People request re-argument because they claim that they only had ten (10) minutes to prepare for the hearing. Next, they wrongly assert that there is no requirement that they establish that the items seized from the Defendant were in fact drugs because they were seized from the Defendant incident to arrest. Finally, the People acknowledge their error in not eliciting the appropriate testimony regarding the procedures and protocols of the inventory search but argue that this Court should allow them to re-open the hearing so that they may cure their error.

None of the arguments raised by the People support this Court granting their motion to reargue. It is unquestionable that the Assistant District Attorney's preparation of their Police Officer witness is within their control. If the People wait until the last minute to prepare their witnesses for a hearing, then they do so to their own peril and cannot later claim ignorance regarding the testimony that is ultimately presented or not presented by that witness at the hearing. Moreover, if the People were not prepared to proceed with the hearing then they should have requested an adjournment.

The remainder of the People's arguments neither meet the requirements for a motion to reargue nor are legally grounded. In fact, none of the cited cases by the People support their assertion that the failure to elicit testimony in a suppression hearing due to an attorney oversight is reason to grant permission for re-argument. The People's reliance on the Court of Appeals' decision in People v. Whipple, 97 NY2d 1, 760 N.E.2d 337 (2001), is misplaced. In Whipple, the Court found that reopening the case to permit the People to establish that the incident occurred with a public parking lot sufficient to establish the statutory elements of the requisite charge for which the defendant was charged with, was a missing element which was simple to prove and not seriously contested, thereby holding that reopening would not unduly prejudice the defense. Id. In the case before this Court, the People's errors in lack of preparation and presentation do not justify reopening, not to mention the substantial prejudice that such reopening would pose to this defendant.

The People's reliance on People v. Widgeon, 303 AD2d 330 (1st Dept. 2003),is similarly without basis since in that case just as soon as the hearing concluded, the People made a motion to reopen for the introduction of a lineup photograph — such motion being made prior to any decision being rendered by the Court — thereby, being temporarily close in time and substance, the Court properly permitted the People to immediately reopen their case for the presentation of the photograph. The Court in Widgeon clearly noted that the introduction of the photograph posed no risk of distorted testimony and there was no bad faith by the People nor prejudice to the defendant caused by its introduction. Id. Similarly, in the Third Department case cited, People v. Whitmore, 12 AD3d 845 (3rd Dept. 2004), the Court had not yet reached a decision with respect to suppression and the People's immediate request to reopen to add additional rebuttal evidence regarding the voluntariness of defendant's statements, was granted. These cases are simply of no support to the People's position in their instant motion. [*3]

It is mandatory in a Mapp hearing that the People establish what was seized from the Defendant, where it was seized, and how it was seized. The People's failure at a Mapp hearing to properly present evidence and to establish and clarify fundamental issues, is not a fact or law which this Court overlooked or misapprehended. Similarly, the People's glaring failure to elicit the requisite testimony substantiating the procedures and protocols regarding an inventory search of the Defendant's vehicle and the basis for said search, is not a fact or law which this Court overlooked or misapprehended. This Court will not re-conduct hearings because the People fail to establish necessary and essential elements on their first attempt.

WHEREFORE, the People's motion to reargue this matter is denied This constitutes the opinion, decision and order of the Court.

Dated: August 1, 2007

ENTER:

____________________________________

Norman St. George, District Court Judge