| People v Clarke |
| 2014 NY Slip Op 07680 [122 AD3d 765] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nnamdi Clarke, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M.Castellano, Johnnette Traill, Sharon Y. Brodt, Jeanette Lifschitz, Nicoletta J. Caferri, andRoni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered December 16, 2010, convicting him of criminal possession of aweapon in the second degree (two counts), reckless endangerment in the first degree, andunlawful possession of marijuana, upon a jury verdict, and imposing sentence. Theappeal brings up for review an order of the same court (Griffin, J.), dated June 9, 2010,which denied, without a hearing, the defendant's motion pursuant to CPL 30.30 todismiss the indictment on the ground that he was deprived of his statutory right to aspeedy trial.
Ordered that the judgment is reversed, on the law, the order is vacated, thedefendant's motion to dismiss the indictment pursuant to CPL 30.30 on the ground thathe was deprived of his statutory right to a speedy trial is granted, and the matter isremitted to the Supreme Court, Queens County, for the purpose of entering an order in itsdiscretion pursuant to CPL 160.50.
On May 14, 2009, the People moved to take an oral swab from the defendant for aDNA test. This motion was made more than 17 months after the defendant's November29, 2007, arrest, and December 3, 2007, arraignment on the criminal complaint,approximately nine months after the defendant was indicted on August 18, 2008, andalmost three months after the court issued a determination dated February 20, 2009,deciding, after a hearing, those branches of the defendant's omnibus motion which wereto suppress physical evidence and statements he made to law enforcement officials. OnJune 5, 2009, the defendant, while preserving an objection on speedy trial grounds,consented to the taking of the oral swab. On November 13, 2009, the People produced acomplete report of the results of the DNA test.
The defendant moved pursuant to CPL 30.30 to dismiss the indictment on the groundthat he was deprived of his statutory right to a speedy trial. Contrary to the People'scontention, because the People failed to exercise due diligence in obtaining the DNAsample from the defendant, the 161-day period between June 5, 2009, and November 13,2009, was not excludable on the ground that their need to obtain the DNA test resultsconstituted excusable, exceptional circumstances (see [*2]CPL 30.30 [4] [g]; People v Wearen, 98 AD3d 535, 538 [2012]; People v Rahim, 91 AD3d970, 972 [2012]; see generally People v Washington, 43 NY2d 772, 773[1977]). Adding this period of time to the periods of delay correctly conceded by thePeople, the People exceeded the six-month period in which they were required to beready for trial (see CPL 30.30 [1] [a]). Accordingly, the judgment must bereversed, the defendant's motion pursuant to CPL 30.30 granted, and the indictmentdismissed.
In light of our determination, we do not reach the defendant's remaining contentions,including those raised in his pro se supplemental brief. Mastro, J.P., Hall, Roman andMaltese, JJ., concur.