Defendant filed the instant motion, pursuant CPLR (hereinafter Civil Practice Law and Rules) § 2221 (f) and § 2221(e), seeking to reargue and renew his motion to inspect the grand jury minutes and upon inspection an order dismissing the indictment. The Court reviewed defendant's moving papers and the People's opposition papers. Defendant's motion is Granted ^[FN1] , for the reasons detailed herein:

The purpose of a motion to renew is to afford a litigant an opportunity to submit new or additional facts which existed at the time of a prior motion but were not known to the party seeking renewal and, consequently, unknown to the court. A motion to renew shall be based upon new facts not offered on the prior motion which would have changed the Court' determination. (CPLR § 2221[e] [2]). Additionally, the moving party must also provide a reasonable justification for its failure to present such facts on the prior motion. (CPLR § 2221 [e] [3]). A motion to renew is not vehicle for the unsuccessful moving party to argue the very questions previously decided.

Here, defendant established entitlement to renew his application in so far as defendant provided evidence not previously before the Court. Moreover, defendant did not have possession of this evidence at the time of the initial motion and only received the information as part of discovery after the previous motion was decided.

Defendant argues that the People failed to disclose exculpatory evidence to wit a surveillance video to the grand jury pursuant to Brady v. Maryland. Brady v. Maryland, 373 U.S. [*2]83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963]. Defendant contends that the People's failure to disclose such favorable information prejudiced the grand jury's ultimate decision on whether to vote a true bill indicting him of the charges presented by the People. Additionally, defendant argues the particular facts of this case require that the People obtain a new indictment where the only testimony given was mistaken or false. People v. Pelchat, 62 NY2d 97, 10509 (1984). The People contend they were not obligated to disclose the video surveillance to the grand jury as their Brady obligations do not extend to grand jury presentations. Moreover, the People argue the video in question merely depicts a different angle of the incident and would not have materially influenced the grand jury investigation.

As an initial matter it should be noted the People presented this case to a grand jury, on June 12, 2019. The defendant was subsequently indicted for Criminal Possession of a Weapon in the Second Degree and other related charges. This Court later ruled that the People's presentation to the grand jury was legally sufficient to support the charges in the indictment. The People subsequently served defendant with discovery which included a video surveillance of the alleged incident. Upon receiving the video surveillance defense counsel made an oral application to reduce the defendant's bail status and requested that the People further investigate the incident and make a determination as to whether the defendant should continue to face charges for this incident as it appeared in the video that perhaps another individual actually possessed the firearm at issue. The case was adjourned so that the People could investigate this matter and determine whether another person should be charged in this case. The People ultimately decided to pursue charges against another individual under an acting in concert theory but did not determine that charges should be vacated against this defendant. Defendant again raised the argument that the video surveillance seemingly contradicted testimony provided by law enforcement and as such should have been presented to the grand jury.

While the People contend that their obligations under Brady do not apply to grand jury proceedings, the People are required to present evidence to the grand jury which could "materially influence" the Grand Jury's investigation. People v. Lancaster, 69 NY2d 20, 25-26 [1986]. The court in People v. Isla, addressed a similar issue where the court noted that that the People should have disclosed full evidence of a defendant's statement to the grand jury and not just part of it. The Court noted "the Grand Jury was entitled to the full story so that it could make an independent decision that probable cause existed." People v. Isla, 96 AD2d 789 [1st Dept. 1983].

In the instant matter, the video surveillance presents a full story in that it shows at some point during this incident another unapprehended person possessed what appeared to be a firearm. Whether the defendant later possessed the firearm or what occurred outside the frame of the video surveillance is not for this Court to decide. The critical issue is that the video presents a set of facts which differ significantly from what law enforcement testified to as part of the grand jury presentation. The set of facts represented by the video was not shown to the grand jury nor was it viewed by the People. In fact, the People did not view this video until it was brought to their attention by defense counsel. The police officer who testified before the grand jury only provided facts which accounted for a portion of the incident and not the entire event in its totality. The grand jurors were prevented from hearing adequate evidence to assist in their investigation as such this indictment is defective and legally insufficient under CPL§§ 210.25 (1), 210.30 (2) (4) and CPL § 210.35. Accordingly, the indictment against the defendant is dismissed with leave to represent.

The foregoing constitutes the Decision and Order of this Court.