Defendant filed a motion to renew and reargue pursuant to CPLR 2221 based on a Decision and Order dated December 28, 2021, by the Honorable Charles Zambito. By way of background, the hearing was held on August 24, 2021, before the Honorable Charles Zambito. The People were represented by District Attorney Lawrence Freidman and the Defendant was represented by Frank Housh. Judge Zambito initially left the Huntley hearing open after August 24, 2021 to permit defense counsel to submit additional information. Defense counsel asked for multiple extensions on October 5, 2021, and October 27, 2021, both of which were granted. The Defendant's memorandum of law was submitted on November 15, 2021, where the Defendant argued to either grant suppression of the statements or in the alternative, reopen the Huntley hearing. The People responded on November 16, 2021.

A written decision was issued on December 28, 2021 by Judge Zambito denying suppression of the statements made by the Defendant to Batavia Police Department Officer Gombos and Genesee County Sheriff's Deputy Kevin McCarthy. Thereafter, a motion to renew and reargue was filed on January 24, 2022, before this Court where Defendant sought to suppress the statements or, in the alternative, re-open the Huntley hearing. Oral arguments were held on February 8, 2022, before this Court who reserved decision.

On February 9, 2021, an email was sent to Chambers alerting this Court that Defendant wished to make a motion "as soon as possible" for this Judge to recuse. ( See Exhibit A- Housh Email dated February 9, 2022). Defendant filed that motion on February 10, 2022, and a Decision and Order was issued and sent to the attorneys on February 15, 2022, denying Defendant's motion. ( See Exhibit B- Decision and Order dated February 15, 2022).

Defendant has sought relief under both Rule 2221(d)(2) (motion to reargue) and (e)(2) [*2](motion to renew). Under Rule 2221(d)(2), a motion to reargue is to be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion. A motion to review under Rule 2221 (e)(2), on the other hand, is to be based on a new fact or law that would change the prior determination. Pursuant to CPLR 2221, a motion to renew and reargue is based soundly in the Court's discretion.

This Court cannot sit as an appellate Court to review the manner in which Judge Zambito conducted this hearing. In order for the Defendant to prevail, he must either demonstrate that a fact or law was overlooked or misapprehended by the prior judge, or a new fact or law exists, which requires a modification of the Court's prior decision.

With respect to the Defendant's motion to reargue, the defense argues that People's Ex. 1 and 2, DVDs of the officers' body worn camera footage, was improperly authenticated. The decision to admit or exclude videotape evidence generally rests within a trial Court's founded discretion. See People v. Patterson, 93 NY2d 80, 84 (1999). Pursuant to People v Patterson and its progeny, a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted. See id. and People v. Johnson, 192 AD3d 1612, 1614-1615(4th Dep't. 2021). At the hearing, the DVDs containing the recordings of the officers' body-worn cameras ("BWCs") were authenticated by testimony of the police officers, who were wearing the BWCs at the time of recording and were witnesses to the recorded events. In laying the foundation, the People asked each police officer whether he had previously watched the recordings contained within Exhibits 1 and 2 prior to the hearing and the events captured on the recordings fairly and accurately depicted what occurred. The officers answered in the affirmative. Accordingly, this Court holds that Judge Zambito did not overlook or misapprehend a fact or law with respect to the authentication of the DVD recordings in this case. The Defendant's motion to reargue with respect to the authentication of the recordings contained on People's Exhibits 1 and 2 is DENIED.

The Defendant next argues that the previous judge should have permitted the police officers' BWC videos to be played in Court during the Huntley hearing, so that a proper cross-examination could be conducted. In support of that argument, defense counsel cited the recent United States Supreme Court decision in People v. Hemphill. In that case, the Supreme Court held that the trial court violated the Defendant's 6th amendment right to confrontation when it admitted the transcript of the co-defendant's plea allocution at trial as evidence against Mr. Hemphill over his objection.

The Defendant argues that the prior Court erred when it precluded the defense from playing the DVD recordings during cross-examination at the suppression hearing. It is well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters. See People v Sorge, 301 NY 198; See People v. Herner 212AD 1042. However, defense counsel was provided an opportunity to and did cross-examine the police witnesses during the hearing even though no video was played. Moreover, Judge Zambito stated on the record that he would review the recordings, which are over an hour in length, in chambers, and noted in his written that he had reviewed the recordings.

Contrary to Defendant's assertion, the Hemphill decision is not on point as the matter pending before Judge Zambito was a suppression hearing and not a trial. Moreover, defense counsel did have the opportunity to and did cross-examine the witnesses unlike in the Hemphill case. As such, the Defendant did not present any change in law that supports his contention that [*3]the Huntley hearing should be re-opened. See generally, Quinn-Jacobs v. Moquin, 2022 WL 261676, dated January 28, 2022. As such, the Defendant's motion to renew is DENIED.

The Defendant has not carried his burden to demonstrate that the Court "overlooked or misapprehended a matter of fact or law" in denying his original motion. See CPLR §2221 (d).Rather, the instant motion appears to be an attempt by the Defendant to simply argue once again the very questions previously decided by Judge Zambito. See: Foley v. Roche, 68 AD2d 558, lv denied 56 NY2d 507.

As a result of the analysis above, Defendant's motion to reargue is also DENIED.

The Defendant has failed to meet his burden to demonstrate that the prior Court "overlooked or misapprehended a matter of fact or law" in denying his original motion under CPLR § 2221(d)(2) and failed to present any "new case law or new facts" which would change the prior determination as required under CPLR § 2221(e)(2).

Defendant's motion is DENIED in its entirety.

This Decision constitutes the Order of this Court.