The People move this Court to reargue its April 2, 2025, Decision and Order, finding Count 5 of the instant Indictment, charging Reckless Endangerment in the First Degree (PL § 120.25) to be legally insufficient, based upon the People's failure to instruct the Grand Jury on the legal concept of depraved indifference. The defendant filed an opposition to the People's motion. Upon review of all submissions by the parties, as well as the court file and official record, the People's motion is disposed as follows:

Nothing contained in the Criminal Procedure Law (CPL) 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 CPL concerning an issue at hand, those provisions of the Civil Procedure Law and Rules (CPLR) 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]).

CPLR section 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 [*2]1979]; Borzon at 916-17; 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 re-argument 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 decision" (Loland v. City of New York, 212 AD2d 674 [2d Dept 1995]).

The People's motion to reargue is GRANTED. The People maintain that the Grand Jury was previously instructed on the legal concept of depraved indifference at the outset of their term. Therefore, because the Grand Jury had already been provided with the instruction, the People contend that they do not need to re-advise the jury of this concept, unless so requested. The defendant opposes.

Annexed to the People's instant motion as Exhibit 1 is a transcript of the general concepts and legal instructions that were provided to the Grand Jury at the beginning of their term. That same Grand Jury heard the evidence presented for the instant matter and rendered a true bill as to all counts as instructed by the People. Inclusive in the general instructions was the definition of depraved indifference. Therefore, the People fulfilled their "duty when another prosecutor gave this grand jury a thorough, detailed instruction as to such law, as part of another case earlier in the grand jury's term. It is very common for a prosecutor to rely on a grand jury's prior receipt of legal instructions either at the beginning of the term or in connection with another case" (People v Hewitt, 233 AD2d 171, 172 [1st Dept 1996]; see also People v Seidman, 206 AD2d 257, 257 [1st Dept 1994] ["The People gave the grand jury such instructions as were 'necessary or appropriate' in view of the grand jurors' assurances that the instructions defendant claims should have been given were unnecessary because already heard by them earlier in their term"] [internal citations omitted]; People v Brown, 176 AD2d 155, 156 [1st Dept 1991] ["With respect to the grand jury instructions, while we note that circumstances might require the District Attorney to reinstruct the grand jury on the pertinent elements of the crime on a case-by-case basis, under the circumstances of the present case, the District Attorney's reliance on instructions, given earlier in the day to the same grand jury, with respect to the elements of the crime charged, does not require dismissal of the indictment."]).

Furthermore, this court does not believe that this case presented a scenario in which the re-instruction of depraved indifference was necessary or otherwise required (see Brown, supra).

However, the better practice for the Kings County District Attorney's Office would have been to supply the instructions in contention to the reviewing court whenever the People intend to rely on said instructions that were given as part of the jury's commencement of their term of service or from a different, unrelated presentation, to establish that the Grand Jury was properly and previously instructed on the law.

The reviewing courts lack the clairvoyance to be mind readers. Unless supplied with the appropriate transcripts, which include all necessary instructions, the reviewing courts have no cognizable option but to dismiss counts for failure to properly instruct the Grand Jury on the necessary and integral legal concepts. In the interest of judicial economy and the desire to achieve the just outcome, the People must provide these transcripts at the time of their submissions of the Grand Jury materials for review to alleviate unnecessary and avoidable motion practice, which serve no legitimate purpose other than frustrating the interests of efficient and accurate justice. In addition to supplying these instructions to the court, the Assistant District [*3]Attorneys should also inform he Grand Jury that a particular legal concept is applicable to the case before them and request of that jury whether they wish to be re-instructed as to that applicable legal concept, principle, or definition. This practice would ensure that the Grand Jury knows a particular legal concept is relevant to their instant consideration.

This court reminds the People that it is the People's obligation, not only to properly instruct the Grand Jury on the law and legal concepts for each and every presentation, but to satisfy the reviewing court that they have indeed satisfied this burden.

Accordingly, the People's application to reinstate Count 5 of the Indictment, charging Reckless Endangerment in the First Degree, is GRANTED.

This constitutes the decision and order of the court.

So Ordered.

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