Defendant C.P.^[FN1] seeks partial reargument of an earlier motion to suppress, a branch of which asked to preclude an un-noticed identification. The People had defended the identification as confirmatory under People v. Rodriguez, 79 NY2d 445 (1992), contending that notice (and, thus, preclusion) was not required. After a hearing, Judge Carmen Pacheco agreed with the People, concluding that the identifying witness was sufficiently familiar with C.P. that police suggestiveness was not an issue.

In his reargument motion, C.P. now contends that the People failed to meet their burden of showing that the person who identified him as he stepped out of an elevator in the lobby of his building—the mother of one of the alleged victims—was sufficiently familiar with him. Because C.P. has not shown that Judge Pacheco overlooked any issue of fact or misapplied the relevant standard—which balances familiarity against the likelihood of suggestiveness of the particular identification—C.P.'s motion is DENIED.

The parties are familiar with the facts and procedural history, which are recited only as necessary to explain today's decision. In brief, C.P. is charged with offenses arising out of alleged improper contact with and comments directed at three minor children whom he had taken (apparently without other adults present) to a Bronx restaurant.

Shortly after the incident, the mother of one of the children called 911. She identified her daughter's alleged assailant as a man named "C.," providing a physical description and describing what C.P. had been wearing.

When officers responded to her home, the mother told them that "C." lived in the apartment building next door. She accompanied the officers as they went to look for him.

As they entered his building, C.P. stepped out of the ground-floor elevator. Although he was now wearing different clothes, the mother nevertheless identified him as the person she had called about earlier, leading to his arrest.

The People did not provide C.P.L. § 710.30(1)(b) notice of this identification at arraignment or within the post-arraignment statutory window. As a result, C.P. moved to preclude its use at trial.

The court held a Rodriguez hearing to determine whether the mother's identification of C.P. was confirmatory and unlikely to have been the product of suggestion by the police, which would allow its use at trial despite the People's failure to serve notice. According to the record of the hearing, the mother had initially described C.P. as a family friend during the 911 call. But her daughter (one of the complainants) later clarified that C.P. was a friend of one of the other families, not her own. The daughter had otherwise seen C.P. in that family's home, and confirmed C.P. had purchased food for her on at least one prior occasion. The testifying officer believed the mother was nevertheless familiar with C.P. because she gave his name and later pointed him out.

At the close of the hearing, C.P. argued that the mother's un-noticed identification in the building lobby should be precluded because she lacked sufficient familiarity. Hearing Tr. at 43—46. The People responded, in part, by arguing that familiarity was adequate in the context of the identification, where the mother provided C.P.'s name and address and was able to describe him. The People also argued that the identification was not police-arranged, as the mother had spontaneously identified C.P. upon walking into his apartment building alongside the officers—a characterization C.P. disputed. Id. at 47—54.

In a written decision, Judge Pacheco determined that the mother was sufficiently familiar with C.P. to render her identification confirmatory. Judge Pacheco relied on (1) the mother's ability to provide his name, description, and location during the 911 call; (2) the record's suggestion of at least one prior occasion where C.P. took her daughter to get food; and (3) his status as a family friend of one of the other complainants. Given this relationship, the People had met their burden to establish sufficient familiarity in order to overcome any suggestive or misleading identification.

C.P. now contends that the People failed to meet their burden at the Rodriguez hearing and argues that the decisions relied on by Judge Pacheco did not support the finding of adequate familiarity.

The People respond that the mother was sufficiently familiar with C.P. to overcome any police suggestion, arguing in the alternative that the identification was not police-arranged at all (a point C.P. disputes in his reply). The fully briefed reargument motion was then reassigned for decision after Judge Pacheco's departure from the Bronx.

Reargument in a criminal case is authorized either by C.P.L.R. § 2221(d), see People v. Borzon, 47 Misc 3d 914, 916 (Sup. Ct., Bronx Co. 2015) (explaining the general consensus 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"), or through a court's "inherent authority" to reexamine its decisions and correct mistakes and errors, People v. Lawson, 43 NY3d 939, 942 (2024). Reargument is discretionary, warranted only if "the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law." [*2]Springs v. L&D L. P.C., 234 AD3d 422, 424 (1st Dept. 2025). It cannot be used to relitigate issues already decided or to present "arguments different from those originally asserted." Setters v. AI Properties & Devs. (USA) Corp., 139 AD3d 492, 492 (1st Dept. 2016) (internal quotation marks and citation omitted).

C.P. has not shown a mistake of fact or law that warrants reargument.

Under C.P.L. § 710.30, the People must ordinarily provide pretrial notice about a police-arranged identification, so that a defendant can litigate whether the identification procedure was misleading or suggestive. People v. Houze, 177 AD3d 1184, 1185—86 (3d Dept. 2019). If the People do not provide timely notice, they may be precluded from introducing the identification at trial. People v. Pacquette, 25 NY3d 575, 579 (2015).

Pretrial notice is not required, however, if the identification is "confirmatory," which occurs when the identifying witness is sufficiently familiar with the defendant that suggestiveness is not a concern and there is "virtually no possibility that the witness could misidentify the defendant." Rodriguez, 79 NY2d at 450. The required level of familiarity is "necessarily a question of degree," id., and depends on the suggestiveness and context of the identification.

Judge Pacheco's decision on preclusion properly applied this standard, balancing familiarity against the risk of suggestiveness to determine that the identification was confirmatory. C.P. has not persuasively shown either that Judge Pacheco misapplied the standard, overlooked any issue, or committed an independent error of fact or law. And while he understandably disagrees with the conclusions Judge Pacheco drew from the evidence—for instance, the inference of familiarity from C.P. having taken the daughter to a restaurant on a prior occasion, see Defense Reply ¶ 8—those points of disagreement do not provide the basis for reargument when, as here, the court's findings of fact are adequately grounded in the record. Accordingly, C.P. has not met the threshold requirement for reargument.

Regardless, even if C.P.'s framing of the issues is correct—that this was a police-arranged identification governed by the confirmatory exception of Rodriguez, and that identity was actually at issue ^[FN2] —he has not shown that the People's proof fell short in the context of the identification in this case.

That context is crucial: the mother was not acting as an eyewitness to a crime by identifying someone whom she saw commit an offense, but rather was simply identifying the person who had been implicated by her daughter.^[FN3] After naming "C." during the initial 911 call, [*3]the mother was able to describe where he lived and how he looked, and also give a shorthand description of why she knew him. Then, a short while later, she was able to point him out as he stepped out of the elevator in a nearby apartment building. The level of detail she provided to police was more than adequate to overcome the minimal possibility of suggestiveness.

C.P. counters that some of the cases that Judge Pacheco relied on involved a greater degree of familiarity. But while that is true to a point, none of those decisions required a higher degree of familiarity in a context like this one. For instance, in People v. Bryant, 253 AD2d 672 (1st Dept. 1998), the witness knew the defendant by name (as here), but also testified that she had known the defendant for his entire life and had seen him "frequently" over the course of the prior year. Id. at 673. Yet in People v. Espinal, 262 AD2d 245 (1st Dept. 1999), the witness knew the defendant's first name, where he lived, the car he drove, and had seen him twenty times in the prior year, id. at 245—not worlds apart from the mother's awareness here of C.P.'s name, address, physical description, and clothing, as well as the added salient factor that C.P. had (allegedly) taken her daughter and friends to a restaurant.

Moreover, and unlike in those cases, the mother's identification here served to put a face to the name that she already provided police, done via a spontaneous and unprompted identification of C.P. in the lobby of his apartment building. As set forth above, that difference in kind of identification and context suggests that a lower degree of familiarity is needed. Cf. People v. Laurey, 163 AD2d 742, 743 (3d Dept. 1990) (no notice needed when the purpose of the identification was to "put a name to a face" previously known).

C.P. also points to People v. Newball, 76 NY2d 587 (1990), but that decision is distinguishable on both fact and law, and does not help him. The non-confirmatory identification in Newball was made by an undercover officer who had observed the defendant from more than 50 feet away only once before, during a drug buy. Nearly a month later, during another drug buy, that officer identified the defendant as the person from the first buy. See id. at 589. Not only was the proof of familiarity in Newball weaker than the People's record in this case, but the identification itself was the precise kind most vulnerable to suggestion: an assertion that a person was the same as one seen earlier committing a crime. Newball does not control the outcome where, as here, the degree of familiarity was greater and the actual identification appears less prone to suggestiveness or mistake.

In sum, C.P. has not shown that reargument is warranted. It is therefore ORDERED that his motion for reargument is DENIED.