Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Cornelius, J.
Present — Callahan, J.P., Boomer, Green, Pine and Lawton, JJ.
Judgment unanimously reversed on the law, defendant's motion to suppress granted and matter remitted to Supreme Court, Monroe County, for further proceedings on the indictment. Memorandum: Supreme Court initially granted defendant's motion to suppress the result of a breathalyzer test. The court found that the analysis of the ampule used in the machine was conducted more than 19 months before the police administered the test to the defendant following his arrest for driving while intoxicated. Upon reconsideration of the motion at the People's request, the court reversed its earlier ruling and denied defendant's suppression motion. The court erred in entertaining the People's motion to reconsider. If the motion was to reargue, as the assistant prosecutor labeled it, then it was improper because it was based upon new facts (see, Simpson v Loehmann, 21 N.Y.2d 990; Foley v Roche, 68 A.D.2d 558, 567-568; Phillips v Village of Oriskany, 57 A.D.2d 110, 113). At oral argument on appeal, the People conceded that the motion was one to renew. The People, however, have not established why the new proof could not have been submitted on the original motion (see, Matter of Kadish v Colombo, 121 A.D.2d 722). Absent newly discovered evidence, there is no authority to renew a previously determined suppression motion (see, People v Horn, 156 A.D.2d 930). Accordingly, the court's initial decision granting defendant's suppression motion, from which the People did not appeal, must be reinstated. We decide no other issue.