Opinion
No. 570329/19
04-17-2023
The People of the State of New York, Respondent, v. Cleveland Lawson a/k/a Emanuel Marks, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, James, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J., at suppression hearing; Kate Paek, J., at plea and sentencing), rendered May 28, 2019, convicting him, upon his plea of guilty, of driving while intoxicated, and imposing sentence.
Judgment of conviction (Steven M. Statsinger, J., at suppression hearing; Kate Paek, J., at plea and sentencing), rendered May 28, 2019, affirmed.
Following a suppression hearing, the court initially granted defendant's motion to suppress the evidence on the ground that the stop of defendant's vehicle was unlawful. Thereafter, the People moved for leave to reargue, contending that the stop of defendant's vehicle was lawful based upon the testifying police officer's observation of the defendant making two U-turns on a "divided highway" in violation of New York City Department of Transportation Traffic Rules and Regulations [34 RCNY] § 4-07[h][2]). A "divided highway" is defined as "any highway [that] is divided into two or more roadways by an intervening space, physical barrier, or clearly indicated dividing section so constructed to impede vehicular traffic" (34 RCNY § 4-07[h][1]). The court granted reargument and, upon reargument, denied defendant's motion to suppress.
Contrary to defendant's contention, the court had "inherent power to recall and vacate its initial suppression ruling, in which suppression had been granted" (Matter of Beramy G., 267 A.D.2d 96 [1999]; see People v Franco, 155 A.D.3d 484 [2017], lv denied 30 N.Y.3d 1104 [2018]). "[W]here there is a clearly erroneous dismissal..., it is unreasonable to foreclose a court from reconsidering its previous determination, and there is no indication that the Legislature intended to preclude the Judge from reinstating [a]... dismissed count upon reargument" (People v Lynch, 162 A.D.2d 134 [1990], lv denied 76 N.Y.2d 941 [1990]).
Upon reargument, the Court properly denied defendant's suppression motion. There is no basis for disturbing the hearing court's credibility determinations (see People v Prochilo, 41 N.Y.2d 759, 761 [1977]). Testimony credited by the court established that defendant was traveling on a "divided highway," i.e. one with a center median, when he made both U-turns in violation of 34 RCNY § 4-07(h)(2). Accordingly, the stop of the vehicle was lawful (see People v Kindred, 100 A.D.3d 1038, 1039 [2012], lv denied 21 N.Y.3d 913 [2013]; see also People v Hinshaw, 35 N.Y.3d 427 [2020]).