| People v Gonzalez |
| 2016 NY Slip Op 01388 [136 AD3d 581] |
| February 25, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Appellant, v Steven Gonzalez, Respondent. |
Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), forappellant.
The Bronx Defenders, Bronx (Defne Ozgediz of counsel), for respondent.
Order of the Supreme Court, Bronx County (Michael A. Gross, J.), entered on orabout December 17, 2014, which granted defendant's CPL 30.30 motion to dismiss theindictment, unanimously affirmed.
Defendant was charged in a felony complaint dated June 9, 2013 with criminalpossession of a weapon in the second degree and related offenses after he was found inpossession of a pistol on that date. He was subsequently indicted on October 10, 2013 forcriminal possession of a weapon in the second and fourth degrees and criminalpossession of a firearm.
On the night of the incident, the officer who was involved in the arrest and therecovery of the weapon filed a report requesting a laboratory examination of the gun. ThePeople assert that on June 13, 2013, the assigned assistant requested DNA testing, butoffer no documentary proof in support of this claim. In any event, the gun was notreceived for testing by the Medical Examiner's Office until January 17, 2014, more thanseven months later. On March 28, 2014, the Medical Examiner's Office issued a reportconcluding that DNA testing on the gun indicated that results could be compared withDNA samples from defendant. By motion dated March 28, 2014, the People sought tocompel a saliva swab from defendant in order to develop a DNA profile. Defendantopposed and filed a cross motion for a protective order on April 14, 2014.
Prior to the court's ruling on the issue, the People announced on April 21, 2014, "Wecan meet our burden of proof without DNA if we have to, so we can be ready on May 1without DNA results if absolutely necessary." The court adjourned the matter to June 9,2014, for decision on the People's motion and defendant's cross motion. The People didnot object to the court's adjournment for decision, nor did they request that the case beadjourned for trial.
On June 9, 2014, the court rendered its decision, granting the People's motion tocompel defendant to provide a DNA sample, and adjourned the matter to September 15,2014, based on the People's statement that it takes two to three months for an analysis.The sample was taken from defendant on June 13, 2014, and on August 22 2014, theADA sent copies of the results of the DNA testing to defense counsel.
The People announced on September 15, 2014, that they had received the results ofthe DNA testing and that the saliva sample taken from defendant matched the swab thatwas collected from the gun. The case was adjourned to October 15, 2014, for hearingsand trial.
By motion dated October 16, 2014, defendant moved to dismiss the indictmentpursuant to CPL 30.30 and 210.20 (1) (g) on the ground that the People had violated hisright to a speedy trial. The People conceded 124 days, which included the five-day periodfrom June 9, 2013, when the defendant was arraigned, to June 14, 2013, when the casewas held for grand jury action, as well as the 53-day period from that date to August 6,2013, when the case had not yet been presented to the grand jury. They also concededthat the subsequent 64-day period was chargeable to them since they still had notpresented the case to the grand jury, and that the following two-day period was alsochargeable to them since they were not ready for trial.
The issue on this appeal is whether the time period during which the People were[*2]awaiting the results of DNA testing was excludablefrom the People's chargeable speedy trial time as an "exceptional . . .circumstance" (CPL 30.30 [3] [b]). Because the People failed to exercise due diligence toobtain the DNA evidence, the court correctly found that the 98-day interval between thedate on which the court granted the motion to compel a DNA exemplar from defendant(June 9, 2014) and the date on which the People announced the results of that testing(September 15, 2014) was not excludable under CPL 30.30.
Pursuant to CPL 30.30 (4) (g), periods of delay caused by "exceptionalcircumstances" are excludable from the time charged to the People; the People have theburden of proving the existence of an exceptional circumstance (see People vZirpola, 57 NY2d 706 [1982]). CPL 30.30 (4) (g) (i) specifically makes excludable acontinuance "granted because of the unavailability of evidence material to the People'scase, when the district attorney has exercised due diligence to obtain such evidence andthere are reasonable grounds to believe that such evidence will become available in areasonable period." Under this provision, the unavailability of DNA test results can beconsidered an exceptional circumstance, so long as the People exercised due diligence toobtain the results (People v Williams, 244 AD2d 587 [2d Dept 1997], lvdenied 91 NY2d 899 [1998]).
Acknowledging that "[t]here is no precise definition of what constitutes anexceptional circumstance," the Court of Appeals has made clear that the exception to therule must conform to the legislative intent of discouraging prosecutorial inaction (see People v Price, 14 NY3d61, 64 [2010] [internal quotation marks omitted]; People v Washington, 43NY2d 772, 774 [1977] [for delay to qualify as exceptional circumstance, the People mustdemonstrate that their "inability to proceed is justified by the purposes of theinvestigation and credible, vigorous activity in pursuing it"]; People v Clarke, 122 AD3d765 [2d Dept 2014], lv granted 25 NY3d 950 [2015]; People v Wearen, 98 AD3d535, 538 [2d Dept 2012], lv denied 19 NY3d 1106 [2012]; People v Rahim, 91 AD3d970, 972 [2d Dept 2012]).
Here, the firearm was recovered on June 9, 2013 (the day of defendant's arrest), andswabs from the firearm were taken that very night. Nevertheless, the OCME did notreceive the swabs until January 17, 2014, more than seven months after defendant'sarrest. The People did not establish that they communicated with the OCME or otherwiseattempted to obtain DNA evidence during the seven-month period. As a result of thisinaction, the People did not move to compel a DNA sample from defendant until March28, 2014, almost 10 months after his arrest. It is the responsibility of the People "to becognizant of the progress of a particular case" (see People v Fuggazzatto, 96AD2d 538, 540 [2d Dept 1983], mod on other grounds 62 NY2d 862[1984]).
The People's argument that the time between June 9, 2014 and September 15, 2014should be excluded nonetheless because on April 21, 2014 they made a "plain statementof readiness" has no merit. On that date, the People merely stated that they could proceedto trial without DNA "if we have to," and that they "[could] be ready on May 1 [2014]without DNA results if absolutely necessary." They did not provide a reason for theirrequest of a specific date of May 1. Such a conditional statement of possible futurereadiness is in no way a "plain statement of readiness" (People v Kendzia, 64NY2d 331, 337 [1985] ["(CPL 30.30) contemplates an indication of present readiness,not a prediction or expectation of future readiness"]; see also People v Liotta, 79NY2d 841, 843 [1992] ["[T]he burden rests on the People to clarify, on the record, thebasis for the adjournment"]; compare People v Wright, 50 AD3d 429 [1st Dept 2008][People's unequivocal announcement of present readiness was not illusory,notwithstanding the fact that the People were still gathering forensic evidence tostrengthen their case], lv denied 10 NY3d 966 [2008]). Indeed, on June 9, 2014,when the case was on for decision on the motions, the People were silent about their trialreadiness. In response to the court's inquiry as to how long the People needed for theanalysis, the ADA stated, "In my experience it's usually two or three months, YourHonor." The court then adjourned the case to September 15, 2014, "for controlpurposes." The People did not object to the court's adjournment, or request that the casebe adjourned for trial rather than for control purposes. The People also remained silentabout their trial readiness on September 15, 2014, and did not indicate that they could beready for trial without the DNA results.
[*3] Accordingly, the People were properly charged 98 days for this period, for a totalof 222 days, which is beyond the statutory period of 183 days. Concur—Acosta,J.P., Saxe, Richter, Gische and Kapnick, JJ.