Defendant was arrested and charged with one count each of Vehicle and Traffic Law §§ 1192 (2) (driving while intoxicated, per se), 1192 (3) and driving while intoxicated (common law), both misdemeanors, and 1192 (1) (driving while impaired), a violation.^[FN1]

By motion dated February 14, 2025, defense counsel moves for an order granting leave to reargue, pursuant to Civil Practice Law and Rules ("CPLR") § 2221 (d) (2). Specifically, defendant posits that this Court overlooked or misapprehended matters of fact or law in its Decision and Order dated January 6, 2025, which denied defendant's motion to suppress evidence.

Upon review and consideration of the submissions, court file and relevant legal authority, the court DENIES defendant's motion to reargue pursuant to CPLR § 2221 (d) (2), as decided herein.

Under the CPLR, a motion for leave to reargue should be based upon matters of fact or [*2]law alleged to have been overlooked or misapprehended by the court in its prior motion but should not include any matters of fact not previously asserted (see People v Jones, 57 Misc 3d 590, 591 [Crim Ct, Kings County 2017). Although the Criminal Procedure Law does not expressly provide for motions to reargue, the court has both the discretion to entertain and the authority to decide the motion as long as the criminal matter is still pending before it (see Jones at 592; see also People v Roberts, 76 Misc 3d 448, 452 [Crim Ct, New York County 2022]; People v Wilson, 50 Misc 3d 1224 [A], 2016 NY Slip Op 50261[U], *1, *3 [Crim Ct, Bronx County 2016]).

Defendant avers that the facts at bar are analogous to those presented to the Court of Appeals in People v Vandover, 20 NY3d 235 (2012) and, thus, this court failed to apply binding precedent which found that consumption of alcohol, glassy, blood shot eyes, a lethargic demeanor and alcoholic breath did not provide sufficient proof of impairment. Defense counsel asserts that defendant exhibited no physical or motor impairment and, in the absence of a positive portable breath test reading, this court misapprehended the holding in People v Carrasquillo, 54 NY2d 248 (1981) where plausible innocent explanations abound for defendant's demeanor. Defense counsel maintains that defendant's comportment outside of the vehicle undermined any argument that she was not in control of her faculties and, further, argues that a holding which bases probable cause, in part, on a defendant's slow speech and processing speeds in the absence of a field sobriety test is tantamount to creating a disincentive to officers to confirm their observations. Lastly, defense counsel posits that the court drew unsupported inferences from Sgt. Darden's testimony that he observed indicia of a recent accident on the vehicle defendant was driving at the time of her arrest.

The People assert that defendant's reliance on the Vandover holding is misplaced where the Court of Appeals found support in the record for the lower court's finding that no probable cause existed but was nonetheless precluded from further review of the facts below. The People further contend that several other factors distinguish the instant case from Vandover, where that defendant, who was first noticed by officers in a courtroom and then was followed outside, observed getting into her vehicle and immediately stopped, admitted to having had a couple of drinks six hours prior to her arrest. Next, the prosecution avers that defense counsel's reliance on the holding in Matter of Fermin-Perea v Swarts, 95 AD3d 439 (2012) has no application to the facts presented because field sobriety tests found that defendant was neither intoxicated nor impaired. The People also contend that the totality of circumstances presented, including observations that defendant: was observed running a red light, admitted to drinking alcohol, had heavily scented alcoholic breath observed by both police witnesses, was extremely delayed in responding to simple commands and was driving a vehicle which displayed indicia of a recent accident, create an inference that it was more probable than not that defendant's driving was impaired due to alcohol.

This court did not misapprehend matters of fact or law. Defendant ignores the Vandover Court's caveat that the Court was precluded from further review because there was support in the record for the finding that no probable cause existed to arrest defendant, although "different [*3]inferences may have been drawn" (see Vandover at 239 [emphasis added]). The Vandover holding makes clear that the determination of probable cause is based on "a mixed question of law and fact" (see Vandover at 237). Hence, defense counsel misconstrues the Vandover decision as creating a bright line rule where the court must necessarily examine the facts at bar before applying the applicable standard of proof.

In Ferguson, the court found that "Sgt. Darden's testimony is corroborated by his BWC [body-worn camera] video which demonstrates that defendant appeared dazed and confused as he repeatedly knocked on her car window and repeatedly asked her to lower it, to no avail" (see Ferguson, 2025 NY Slip Op 50018(U), *5). Given this motion to reargue, the sequence of events which occurred immediately after defendant's vehicle was observed running through a red-light merits greater exposition.

At 1:16 minutes on Sgt. Darden's BWC, he approaches defendant's vehicle, knocks on her front passenger side window and asks her to lower her window (People's Exhibit 1). At 2:00 minutes, defendant is staring straight ahead, then begins searching her pockets, never acknowledging Sgt. Darden's presence. At 2:07 minutes, defendant bends over, looks down, sits upright, turns slightly towards her passenger window, without acknowledging the officer, and searches through her middle console. At 2:21 minutes, defendant shuffles papers, apparently removed from her console, and at 2:44 minutes, in response to Sgt. Darden's request for identification, she extends her right arm towards him and holds up what appears to be a rear-view window hanging flag. At 4:56 minutes, Sgt. Darden, asking defendant about the card in her left hand, repeats the words "left hand" four times before defendant responds by holding up what she identifies as a laundry card and a Cash App card. Even after exiting the vehicle, defendant, as noted in Ferguson, continues to appear flummoxed and her speech is rambling (see Ferguson, 2025 NY Slip Op 50018[U], *2).

This court found that, unlike the Vandover defendant, who was held to have exhibited a generally fatigued demeanor, this defendant, in addition to committing a traffic violation, admitting to drinking a Bacardi Black, observed having heavily scented alcoholic breath and bloodshot, watery eyes, was demonstrably confused and delayed in responding to simple directives. Moreover, this court credited Sgt. Darden's testimony that the vehicle defendant was driving at the time of her arrest bore indicia of a recent accident, including a hanging passenger side mirror and scraping alongside the passenger door. Defense counsel's assertion that the holding in Carrasquillo was misapplied because this court gave "undue weight to certain findings as evidence of guilt" strains credulity because there was no finding regarding defendant's guilt. Rather, this court found that the totality of circumstances observed by Sgt. Darden gave him reasonable cause, supported by articulable and specific facts, to believe that defendant drove her vehicle while her ability to do so was impaired (see People v Jace, 55 Misc 3d 1207[A], 2017 NY Slip Op 50450[U], * 6 [Dist Ct, Nassau County 2017] ["(I)n making the determination to arrest, an officer is not obligated to eliminate all possible innocent explanations for incriminating facts"]).

Although defense counsel appears to believe that a "beyond a reasonable doubt standard" should have governed consideration of the facts presented, a determination of probable cause [*4]requires a far lower standard and, contrary to defense counsel's assertion, the holding in Fermin-Perea is not binding precedent where that defendant "never demonstrated an inability to comprehend" what was being asked (see Fermin-Perea at 440-441). Here, while defendant did not exhibit difficulty walking, standing, or balancing, witness testimony and BWC footage of defendant's comportment during the stop warranted a finding that based upon the totality of circumstances Sgt. Darden had a reasonable basis to find that defendant's ability to drive was impaired by alcohol. Further, defendant has cited to no authority for the proposition that an officer, who has assisted in approximately 30 arrests involving intoxication, was required to confirm his observations with a field sobriety test, the absence of which does not undermine his credibility, nor the inferences drawn from his BWC video.

Lastly, defense counsel argues that any perceived delay in responding to officers' directives was induced by the stress of a traffic stop, during which Sgt. Darden is observed patiently, politely and repeatedly asking defendant to do no more than provide her driver's license, and compounded by the effect of having two officers, Sgt. Darden and his partner, Officer Farrell, "pepper" defendant with questions, and possibly attributable to cognitive and educational deficits, neurological disorders, and simple nervousness. However, none of defense counsel's suppositions render Sgt. Darden's belief that defendant's driving was impaired by alcohol unreasonable where there are reasonable inferences in the record which support his opinion.

Upon review and consideration of the submissions, court file and relevant legal authority, we find that defendant has failed to establish that this court misapplied controlling authority or misapprehended the facts at bar. Accordingly, defendant's request for leave to reargue pursuant to CPLR § 2221 (d) (2) is DENIED.

This constitutes the opinion, decision, and order of the court.