Background Facts: The defendant was stopped after making two U-turns in Manhattan and arrested for DUI. The suppression court originally granted the defendant’s motion to suppress the breath test results finding that the People had not established that the U-turns were illegal because they didn’t present sufficient evidence showing they were made within a business district, per VTL § 105. First the People asked to call another witness after the court’s ruling to make the showing, and the court denied their request. A month later, the People moved for reargument, stating that the rules governing U-turns were “far more complex” than they had understood, and presenting a new theory for upholding the stop: that the U-turns were illegal because the road had a median, which the evidence sufficiently established. The court granted the People’s motion to reargue, upheld the stop, and denied the motion.

Issue: Did the suppression court err in granting the People’s motion to reargue?

Held: In a unanimous memorandum opinion, the Court slapped the People down. Citing longstanding law holding that the People don’t get a second bite if they had a full and fair opportunity to oppose suppression, the Court applied this principle here, “where the People were unprepared for the suppression hearing and sought to reargue the legal issue to remedy their lack of preparedness.”

CAL Observes: This decision is a nice reminder that not everything goes. Although disturbing that the hearing court was so receptive to the People’s tactics, it’s refreshing to see that at least the high Court would not indulge the People’s brazen attempt to belatedly fix their mistake. Also a reminder that preservation is key. The defense here did everything right – made the right arguments for suppression at the initial hearing and opposed reargument on the right ground. Unfortunately, although the accusatory instrument was dismissed, there was still a human cost to the People’s unacceptable strategy - Mr. Lawson still ended up serving 40 days in jail, time this victory could not get back.