| People v Metellus |
| 2018 NY Slip Op 00312 [157 AD3d 821] |
| January 17, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mario Metellus, Appellant. |
Paul Skip Laisure, New York, NY (Leila Hull of counsel), for appellant, and appellant prose.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (William E.Garnett, J.), rendered December 7, 2012, convicting him of murder in the second degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Matthew J. D'Emic, J.), of that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officials.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The Supreme Court properly denied, without a hearing, the defendant's motion pursuant toCPL 210.20 (1) (g) to dismiss the indictment on the ground that he was denied his right to aspeedy trial and his due process right to prompt prosecution. A defendant's right to a speedy trialis guaranteed both by the United States Constitution (see US Const 6th, 14th Amends;Klopfer v North Carolina, 386 US 213 [1967]), and by statute (see CPL 30.20 [1];Civil Rights Law § 12). Moreover, an unjustified delay in prosecution will deprivea defendant of the State constitutional right to due process (see NY Const, art I,§ 6; People v Decker,13 NY3d 12, 14 [2009]; People v Staley, 41 NY2d 789, 791 [1977]). However, "adetermination made in good faith to delay prosecution for sufficient reasons will not deprivedefendant of due process even though there may be some prejudice to defendant" (People vVernace, 96 NY2d 886, 888 [2001]; see People v Decker, 13 NY3d at 14). Wherethere has been extended delay, the People have the burden to establish good cause (see Peoplev Decker, 13 NY3d at 14; People v Singer, 44 NY2d 241, 254 [1978]).
In determining whether a defendant's constitutional right to a speedy trial has been violated,the Court of Appeals has articulated five factors to be considered: (1) the extent of the delay; (2)the reason for the delay; (3) the nature of the underlying charges; (4) any extended period ofpretrial incarceration; and (5) any impairment of the defendant's defense (see People v Romeo, 12 NY3d 51,55 [2009]; People v Taranovich, 37 NY2d 442, 445 [1975]; see also Moore vArizona, 414 US 25, 26 [1973]; Barker v Wingo, 407 US 514, 533 [1972]). Thesefactors apply as well to the due process guarantee (see People v Decker, 13 NY3d at 15;People v Vernace, 96 NY2d at 887; People v Staley, 41 NY2d at 792). "In thisState, 'we have never drawn a fine distinction between due process and speedy trial [*2]standards' when dealing with delays in prosecution" (People vVernace, 96 NY2d at 887, quoting People v Singer, 44 NY2d at 253).
Here, the Supreme Court appropriately balanced the requisite factors in denying thedefendant's motion to dismiss the indictment. While there was an extensive delay of 31 monthsbetween the commission of the decedent's murder and the indictment, the Supreme Courtproperly determined that the People met their burden of demonstrating good cause for the delay.The case was largely circumstantial and, thus, the People had a good faith basis to wait until theybelieved that they had sufficient evidence to arrest the defendant (see People v Decker, 13NY3d at 14; People v Denis, 276 AD2d 237, 248 [2000]; People v LaRocca, 172AD2d 628 [1991]; cf. Doggett v United States, 505 US 647, 652-653 [1992]; People vStaley, 41 NY2d at 792). Moreover, the nature of the charge, murder in the second degree,was very serious, the defendant was not incarcerated during the delay period, and he failed todemonstrate prejudice resulting from the delay (see People v Vernace, 96 NY2d at 888;People v Fuller, 57 NY2d 152, 160 [1982]; People v Taranovich, 37 NY2d at445-446; People v Bryant, 65 AD2d 333, 337 [1978]).
The Supreme Court also properly denied, after hearing, that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials, because thestatements were voluntarily made after the defendant knowingly, intelligently, and voluntarilywaived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]; People v Dayton, 66 AD3d 797[2009]; People v O'Malley, 282 AD2d 884 [2001]).
Contrary to the defendant's contention, the Supreme Court imposed a sufficient sanction, anadverse inference charge, on the prosecution for failing to produce the Miranda card usedto administer the warnings to the defendant (see People v Martinez, 276 AD2d 645[2000]; People v Fullwood, 254 AD2d 431 [1998]). Furthermore, the People's failure toproduce the Miranda card did not constitute a Rosario violation (see People vRosario, 9 NY2d 286, 289-291 [1961]). Two detectives credibly testified that theMiranda warnings were preprinted on the Miranda card. Therefore, since theMiranda card was not a prior statement of a prosecution witness (cf. People vConsolazio, 40 NY2d 446, 453 [1976]), the failure to produce the Miranda card didnot constitute a Rosario violation. The defendant's further contention that the People'sfailure to produce the memo book of one of the detectives constituted a Rosario violationis unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, without merit,because the detective's unrebutted testimony was that he took no notes during his interview of thedefendant.
We agree with the defendant, however, that reversal is warranted based on the SupremeCourt's dismissal of the first jury panel. The court opened jury selection by swearing in a fullpanel of prospective jurors. The court then stated the charges against the defendant and listed thenames of all of the prospective witnesses, asking jurors to indicate if they recognized theirnames. After the court gave its preliminary instructions and questioned individual jurors aboutpotential hardships, it called 20 people into the jury box. The court asked each of thoseprospective jurors about his or her background, contacts with the criminal justice system, andhobbies, and then turned the questioning over to the prosecutor. The prosecutor questioned theprospective jurors until the court broke for lunch. After the recess, both defense counsel and theprosecutor notified the court about an interaction between one of the potential jurors and thedefendant's brother. The court was told that as people were waiting outside the courtroom toreenter, one of the potential jurors approached and hugged the defendant's brother. The twochatted briefly until defense counsel interceded and directed them to stop. The two, however,continued to talk until both defense counsel and one of the prosecutors stopped them. During thecolloquy on the People's application to dismiss the entire jury panel, the prosecutor maintainedthat three of the other potential jurors seemed to be looking and commenting on what was goingon, while defense counsel maintained that the three potential jurors were actually standing about10 to 15 feet away, were not privy to the conversation, and were not able to hear it.
The Supreme Court granted the prosecutor's application to dismiss the entire jury panel,concluding that the defendant's brother had potentially tainted the entire panel. Significantly, thecourt did not first conduct an inquiry of the potential jurors as to what they had seen and as to[*3]whether they could remain impartial. Where, as here, a jurypanel is "properly drawn and sworn to answer questions truthfully, there must be legal cause or aperemptory challenge to exclude a [prospective] juror" (People v Thorpe, 223 AD2d 739,740 [1996]; see CPL 270.05 [2];People v Collier, 114 AD3d 1136 [2014]; People v Roblee, 70 AD3d 225 [2009]). By dismissing the entirejury panel without questioning the ability of the individual prospective jurors to be fair andimpartial (cf. People v Wells, 7NY3d 51, 59-60 [2006]), the court deprived the defendant of a jury chosen "at random froma fair cross-section of the community" (Judiciary Law § 500; see CPL270.05 [2]; People v Collier, 114AD3d 1136 [2014]; People vRoblee, 70 AD3d 225 [2009]).
Since there must be a new trial, we note that, although the issue is unpreserved for appellatereview (see CPL 470.05 [2]), the defendant correctly contends that the admission of DNAprofiles and reports violated his right of confrontation. "The Sixth Amendment to the UnitedStates Constitution guarantees a defendant the right to be 'confronted with the witnesses againsthim [or her]' " (People vBrown, 13 NY3d 332, 338 [2009], quoting Crawford v Washington, 541 US 36,53-54 [2004]). "This provision bars 'admission of testimonial statements of a witness who did notappear at trial unless he [or she] was unavailable to testify, and the defendant . . .had a prior opportunity for cross-examination' " (People v Brown, 13 NY3d at338, quoting Crawford v Washington, 541 US at 53-54). "Statements that are consideredtestimonial include 'affidavits, . . . similar pretrial statements that declarants wouldreasonably expect to be used prosecutorially . . . [and] statements that were madeunder circumstances which would lead an objective witness reasonably to believe that thestatement would be available for use at a later trial' " (People v John, 27 NY3d 294, 303 [2016], quoting Crawford vWashington, 541 US at 51-52). Here, the DNA profiles and reports produced from thetesting of evidence recovered from the decedent's home, including the defendant's clothing, aretestimonial, because such profiles and reports "were generated in aid of a police investigation ofa particular defendant charged by an accusatory instrument and created for the purpose ofsubstantively proving the guilt of [that] defendant," and because all of the documents in the fileof the Office of the Chief Medical Examiner refer to the defendant by name and label him a"suspect" (People v John, 27 NY3d at 308; see People v Austin, 30 NY3d 98 [2017]). Furthermore, theadmission of such evidence violated the defendant's confrontation right, because it was admittedupon the testimony of an analyst who did not perform, witness, or supervise the generation of thedefendant's DNA profile, or perform an independent analysis on the raw data (see People vAustin, 30 NY3d at 104-105; People v John, 27 NY3d at 313-315).
The defendant's remaining contentions need not be reached in light of our determination.Hall, J.P., Cohen, Barros and Christopher, JJ., concur.