The defendant moves this Court to renew and reargue its March 29, 2022, Decision and Order, finding the grand jury proceeding, pursuant to Kings County Indictment 74109-21, legally sufficient as to Count One, charging Murder in the Second Degree (Penal Law [hereinafter: P.L.] §125.25(1)); and Count Two, charging Criminal Possession of a Weapon in the Fourth Degree (P.L. §265.01[2]); seeking dismissal thereof pursuant to Criminal Procedure Law (hereinafter: C.P.L.) §§ 210.20(1)(b) & 210.20(1)(c), claiming the integrity of the grand jury proceeding was compromised and may have resulted in prejudice to the defendant, by the admission of a statement obtained in violation of the defendant's Fifth Amendment right to counsel. The People opposed the defendant's instant motion, contending that the statement at issue was constitutionally obtained, and in the alternative if obtained in violation of the defendant's constitutional rights, the admission of a statement that could subsequently be suppressed does not vitiate the Grand Jury proceeding and resulting indictment. Upon review of all submissions by the parties, as well as the court file and official record, the defendant's motion is disposed as follows:

On December 8, 2021, the People filed Kings County Indictment: 74109-21, charging the defendant, with Murder in the Second Degree, pursuant to P.L. § 125.25(1); and Criminal Possession of a Weapon in the Fourth Degree (P.L. §265.01[2]). These charges were based upon allegations that on November 27, 2021, the defendant stabbed Ernesto Diaz (hereinafter: decedent), causing the decedent's death.

The defendant was arraigned on Kings County Indictment: 74109-21 on December 21, 2021, and the defendant entered a plea of not guilty to the accusations contained in that indictment.

Upon review of the Grand Jury presentation, this Court issued a Decision and Order, [*2]dated March 29, 2023, finding legally sufficient evidence to support said indictment, as well as conformity with the requirements of Article 190 of the C.P.L.

The defendant filed the instant motion seeking reinspection of the Grand Jury minutes, petitioning for dismissal of the indictment on grounds that, in pertinent part, the grand jury presentation was defective due to the admission of a statement obtained from the defendant, without counsel present, by police after making an unequivocal invocation of the defendant's right to counsel. In addition, the defendant argues that without the admission of the constitutionally infirm statement, the remaining competent evidence is legally insufficient to sustain the instant indictment. The People opposed said motion, responding that the statement in controversy was constitutionally obtained, as the defendant did not make an unequivocal request for counsel, thereby failing to actionably invoke his rights pursuant to the Fifth Amendment. Moreover, the People rely on case-law that establishes the principle that even if the statement is suppressed, by virtue of a pre-trial constitutional hearing, the admission of that statement in the Grand Jury still constitutes valid, prima facie evidence upon which the indictment can be sustained.

Although the defendant's moving papers do not specifically state that he is moving to renew and reargue the Court's March 29, 2022, Decision and Order concerning the Grand Jury presentation underlying the instant indictment, the purpose of said motion is nothing less as the defendant requests reinspection of the Grand Jury presentation and reconsideration of this Court's prior Decision and Order. As such, this Court is constrained to treat the defendant's motion as if it were made pursuant to Civil Practice Law and Rules (hereinafter: C.P.L.R.) § 2221.

Nothing contained in the Criminal Procedure Law provides a legal vehicle for a defendant to petition a court to renew, reargue or reconsider a previously rendered decision. However, there is a body of case law which holds that where there are no applicable provisions in the C.P.L. concerning an issue at hand, those provisions of the C.P.L.R. that address the issue may be applied in a criminal action (People v Borzon, 47 Misc 3d 914 [Supreme Ct, Bronx County 2015]; People v Davis, 169 Misc 2d 977 [County Ct, Westchester County 1996]; People v Radtke, 153 Misc 2d 554 [Supreme Ct, Queens County 1992]).

C.P.L.R. §2221 provides, inter alia:

(d) A motion for leave to reargue:

2. 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.

A motion to reargue "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" (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]; People v Borzon, at 916-7; see also Mangine v Keller, 182 AD2d 476 [1st Dept 1992]). "A motion to reargue is based on no new proof. It just seeks to convince the judge that the decision was in error and should be changed" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:7, at 182). Motions for reargument are left to the sound discretion of the court and may be granted "upon a showing that the court has overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its earlier [*3]decision" (Loland v City of New York, 212 AD2d 674 [2nd Dept 1995]).

However, a motion to renew may be "based upon new facts not offered on the prior motion that would change the prior determination" provided that the moving party presents "reasonable justification for the failure to present such facts on the prior motion." See C.P.L.R. § 2221(e); see also People v Valentine, 187 Misc 2d 582 (Sup Ct Bronx County, 2001) (Price, J.).

The defendant raises a question concerning the admissibility of evidence presented to the Grand Jury, which could not have been decerned previously by the limited, cold record of the Grand Jury proceeding itself. As such, this Court GRANTS the defendant's motion to renew and reargue this Court's March 29, 2022 Decision and Order.

The defendant argues that the piecemeal presentation of portions of the defendant's statement to police and the People's failure to publish the actual recorded interview of the defendant by police to the Grand Jury was improper and impaired the integrity of the Grand Jury.

There is no dispute that the People enjoy broad discretion when determining how to present a case to the Grand Jury (see People v Rockwell, 97 AD2d 853 [3rd Dept, 1983]). "The prosecutor's discretion in presenting the case to the Grand Jury, however, is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also see that justice is done; 'as a public officer he owes a duty of fair dealing to the accused and candor to the courts' (People v Pelchat, 62 NY2d 97, 105)." People v Lancaster, 69 NY2d 20, 26 (1986). "The District Attorney's duties as a public officer are quasi-judicial in nature and in the performance of his duties he must not only be disinterested and impartial but must also appear to be so." (People v Dzeloski, 161 Misc 2d 867, 868-9 [Bronx Co Sup Ct, 1994], citing People v Lofton, 87 Misc 2d 572 [Kings Co Sup Ct, 1975]).

Here the defendant advocates that the defendant's entire statement should have been presented to the Grand Jury, by way of publishing the videorecording of said statement. In essence this would allow the Grand Jury to determine the weight to give that statement by evaluating the constitutionality of the statement. That determination is not properly within the purview of the Grand Jury to litigate the constitutional admissibility of evidence and as such fails to impair the integrity of the Grand Jury proceeding or resulting indictment. See generally, People v Oakley, (infra).

The defendant further seeks dismissal of the instant indictment maintaining that the People introduced unconstitutionally obtained evidence, which should be suppressed. Emphasizing "gonna (sic) need", the defendant claims that his statement to the police: "I think I am gonna (sic) need an attorney " (see Defendant's Affirmation in Support of Motion to Reinspect and Dismiss, dated March 8, 2023, Paragraph 8), constitutes an unequivocal invocation of the defendant's right to counsel, pursuant to the Fifth Amendment. The People respond, focusing on the use of the word "think", arguing that the defendant's statement is equivocal at best and fails to satisfy the constitutional standard necessary for the defendant's right to counsel to attach (see People's Memorandum of Law in Support of People's Opposition to Defendant's Motion to Reinspect and Dismiss, dated April 6, 2023, Page 5).

Constitutional admissibility is not at issue here. As such, this Court reserves decision on [*4]the admissibility of statements, pending a Huntley hearing prior to trial.

The Court of Appeals in People v Oakley, 28 NY2d 309 (1971), held that an indictment based upon identification testimony, which was subsequently rendered inadmissible at trial, does not impair the validity of the indictment. Relying on Oakley, the First and Second Departments of the Appellate Division have held, that there is "no reason for applying a different rule where, as here, the evidence suppressed was a confession." People v Mauceri, 74 AD2d 833 (2d Dept, 1980). See People v McIntosh, 167 AD2d 429 (1st Dept, 1990) ("The court's subsequent exclusion of the statement for purposes of trial does not render that evidence insufficient or otherwise invalidate the indictment"); see also People v Kersch, 135 AD2d 570 (2d Dept, 1987) ("The subsequent suppression of the statement does not invalidate the conclusion of the Grand Jury"); People v Blase, 112 AD2d 943 (2d Dept, 1985) (although evidence was subsequently suppressed, it was competent before the Grand Jury); People v Vega, 80 AD2d 867 (2d Dept, 1981) (subsequent suppression does not render evidence insufficient for Grand Jury purposes).

Regardless of whether the defendant's statement to police will ultimately be suppressed for purposes of trial, after the appropriate pre-trial constitutional hearings, the statement remains prima facie competent for the purpose sustaining the instant indictment.

An indictment must be based on "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof." C.P.L. §70.10(1). In addition, "legal sufficiency means prima facie proof of the crimes charged." People v Bello, 92 NY2d 523, 526 (1998).

In reviewing the evidence, in a light most favorable to the non-moving party (see People v Carroll, 93 NY2d 564 [1999]), this Court finds, as it did in its Decision and Order, dated March 29, 2022, that the People presented sufficient admissible evidence to sustain the above-listed charges.

Finally, the defendant argues for dismissal of the instant indictment on the basis that without the defendant's statement to the police, there is insufficient competent evidence upon which the indictment may be supported. Based on this Court's determination above, this argument is rendered academic and need not be addressed here.

WHEREFORE, defendant's motion to renew and reargue inspection of the Grand Jury presentation is GRANTED, and upon considerations of the merits the defendant's motion to dismiss the instant indictment is hereby DENIED.

This constitutes the Decision and Order of this Court.