People v. Borzon

• Decision Date: 26 February 2015
• Citation: 47 Misc.3d 914,2015 N.Y. Slip Op. 25053,8 N.Y.S.3d 546
• Parties: The PEOPLE of the State of New York, v. Bruce BORZON, Defendant.
• Court: New York Supreme Court

47 Misc.3d 914
8 N.Y.S.3d 546
2015 N.Y. Slip Op. 25053

The PEOPLE of the State of New York
v.
Bruce BORZON, Defendant.

Supreme Court, Bronx County, New York.

Feb. 26, 2015.

8 N.Y.S.3d 547

Brendan Ahern, Esq.

Steven Epstein, Esq., Barket Marion Epstein & Kearon, LLP.

Justin Siebel, Assistant District Attorney, Office of the Bronx District Attorney.

RICHARD L. PRICE, J.

47 Misc.3d 915

I. Background and Procedural Posture

Defendant is charged with four counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[3] as an “E” felony, a “D” felony, and a misdemeanor; and Vehicle and Traffic Law § 1192 [1 ] ). By decision and order dated November 14, 2014, this court, finding that the refusal warnings administered to the defendant were not clear and unequivocal, suppressed “defendant's subsequent refusal, all related statements, the IDTU videotape, and any corresponding evidence or testimony.”¹

By motion submitted January 28, 2015, the People move for leave to reargue suppression of the IDTU videotape in its entirety, arguing that the “portion where the defendant is being carried into the 45 Precinct by

47 Misc.3d 916

the arresting officer and his partner ... should not be suppressed as it is not related to the defendant's subsequent refusal” (see Affirmation in Support of Motion to Reargue, ¶ 2 [unnumbered], p. 3).

II. Leave to Reargue

At the outset, this court notes that nothing contained in the CPL provides for leave to reargue. But the CPLR does, and this court is constrained to follow it. While the Appellate Division, First Department, opined the CPLR has “no application to criminal actions and proceedings,” it was in the context of the defendants' oral motion to set aside the verdict that the court orally decided on the record (People v. Silva, 122 A.D.2d 750, 750, 506 N.Y.S.2d 55 [1986] ). In Silva, the First Department found defendants' claim that the appeal was “procedurally flawed” pursuant to CPLR 2220 invalid because the People were not required to serve a copy of the written order as a prerequisite to appeal where the order was entered orally on the record (Silva, at 750, 506 N.Y.S.2d 55 ). Since then, however, several courts have determined, as this court does, that where there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR that address the issue may be applied in a criminal action...