People v. Lynch

DARCEL CLARK, J. The People have filed a motion to reargue this court's decision granting a pretrial "Mapp/VTL 1194" hearing. The decision was rendered in court on September 19, 2002 with a copy being personally served on both the prosecutor and defendant test. The People bear the burden of proving, by a preponderance of the evidence, that the warnings were given in clear and unequivocal language and defendant persisted in his refusal. In addition, defendant's request for a Dunaway portion of the hearing is granted. This decision does not affect the other issues decided in the original opinion, which remain in full force and effect. [*] This is not to say, of course, that a party can move to reargue at will until the entry of a final judgment merely because the other side has neglected to serve a copy of a decision. A motion to reargue can be made only when the court allegedly has overlooked or misapprehended a fact or legal principle. (See generally CPLR 2221 [d] [2].)