People v Wilson
Annotate this CaseDecided on March 2, 2016
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Joseph Wilson, Defendant.
2014BX035066
The People — Darcel D. Clark, District Attorney, Bronx County by Nishana M. Weerasooriya, Assistant District Attorney
Defendant — The Bronx Defenders by Melissa Lee
Armando Montano, J.
The motion by the People for an order, pursuant to CPLR 2221(d), granting leave to reargue this court's November 10, 2015 decision and order is hereby denied.
Defendant is charged with Resisting Arrest (PL § 205.30), Obstructing Governmental Administration in the Second Degree (PL § 195.05), and Disorderly Conduct (PL § 240.20[6]).
By decision and order dated November 10, 2015, this court granted defendant's motion to dismiss the superseding information as facially insufficient in its entirety. This court determined that the failure of the superseding information to indicate that the deponent was either in uniform or identified himself as a police officer rendered the charges of PL §§ 195.05 and 240.20(6) facially insufficient. Moreover, since the superseding information failed to allege sufficient facts to support either of these underlying charges, the charge of PL § 205.30 was also facially insufficient. This court stayed sealing for thirty days and granted the People leave to cure the defects in the accusatory instrument.
The People assert that this court overlooked and misapprehended the factual and legal issues. Although the People disagree with this court's reasoning, the People concede that the physical interference element of PL § 195.05 was not and cannot be established. As such, the People do not oppose the dismissal of this count. As to the charge of PL § 240.20(6), the People first note that defendant's original motion was devoid of any arguments for the dismissal of the disorderly conduct charge. Notwithstanding defendant's failure to challenge this count, the People argue that this court erroneously relied upon People v. Cohen, 6 Misc 3d 1019(A) (Crim Ct, NY County 2008) rather than People v. Pesola, 37 Misc 3d 569 (Crim Ct, NY County 2012). Similar to Pesola, the People aver that the superseding information clearly indicates that the deponent officer told defendant to move away multiple times and defendant refused to do so all the while fellow officers were present and engaged in their official function of effectuating the arrest of an unrelated individual. With respect to the charge of PL § 205.30, the People argue [*2]that the issue of whether an arrest was authorized is to be determined by the trier of fact at trial. At the pleading stage, the People maintain that they only need to allege that the defendant engaged in some conduct with the intent of preventing an officer from effectuating an authorized arrest.
In opposition, defendant argues that the People have failed to demonstrate that this court misapprehended or overlooked the facts in determining that the superseding information was facially insufficient. Contrary to the People's assertion, defendant maintains that the facts in Pesola are distinguishable and this court properly decided the original motion. As to the charge of PL § 205.30, defendant points out that the People have improperly raised new arguments, which should be disregarded by this court.
At the outset, this court is obliged to comment on a glaring procedural deficiency common to most motions to reargue filed in this court. Although "the CPLR has no application to criminal actions and proceedings" (People v Silva, 122 AD2d 750, 750 [1st Dept 1986]), several courts have held that that the CPLR may be applied in a criminal action where the CPL is silent on the issue at hand. People v. Ramrup, 47 Misc 3d 1223(A) (Sup Ct, Bronx County 2015); People v. Davis, 169 Misc 2d 977 (County Ct, Westchester County 1996); People v. Radtke, 153 Misc 2d 554 (Sup Ct, Queens County 1992).
CPLR 2214(c) reads in pertinent part that:
Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.
"There is no authority for compelling [a court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214(c), the court may refuse to consider improperly submitted papers." Loeb v. Tanenbaum, 124 AD2d 941 (3d Dept. 1986); see also, Yick Tak Cheung v. City of New York, 2014 NY LEXIS 1627 (Sup Ct, NY County, April 7, 2014). This court does not retain motion papers after a decision is rendered and therefore, this court "should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions." Sheedy v. Pataki, 236 AD2d 92, 97 (3d Dept. 1997) lv denied 91 NY2d. 805 (1998); see also, Biscone v. JetBlue Airways, Corp., 103 AD3d 158, 179 (2d Dept. 2012) (the court properly denied motion to reargue/renew due to the movant's failure to submit all papers submitted on the prior motion pursuant to CPLR 2214[c]).It is not the court's responsibility to locate and retrieve files in order to render a decision on any motion. In this motion to reargue, as the movant, the onus was squarely on the People to submit all prior papers submitted with the original motion in order for the court to determine whether to grant the relief requested. Culpepper v. City of New York, 2014 NY Misc. LEXIS 4513 (Sup Ct, Bronx County, Sept. 22, 2013). Here, the People's motion consists solely of a notice of motion and an affirmation in support. The People have failed to submit a copy of defendant's initial moving papers and their papers in opposition as required by CPLR 2214(c). Although timely filed on December 18, 2015, this court was not aware that the instant motion had been filed until January 29, 2016 when it received papers in opposition from defendant. Thereafter, this court located and retrieved the file in order to review all relevant papers. In the future, should a movant, whether it be the People or a defendant, fail to abide by CPLR 2214(c), [*3]this court will summarily deny the motion without prejudice.
A motion for leave to reargue "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). " A motion for reargument, addressed to the discretion of the court, 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. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.'" Mangine v. Keller, 182 AD2d 476, 477 (1st Dept. 1992), quoting Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979).
Upon consideration of the parties' submissions, the People's request for leave to reargue this court's November 10, 2015 decision and order is denied. Critically, the People have failed to demonstrate that this court overlooked or misapprehended a relevant fact or misapplied a controlling principle of law. The People have also impermissibly raised new arguments, which should have been submitted in a motion to renew.
Accordingly, the motion by the People for an order, pursuant to CPLR 2221(d), granting leave to reargue this court's November 10, 2015 decision and order is denied.
This constitutes the decision and order of this court.
Dated: March 2, 2016
Bronx, New York
_______________________________
Hon. Armando Montano
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