Opinion
Indictment 02459/12
09-25-2013
THE PEOPLE OF THE STATE OF NEW YORK v. SAMUEL WALTON Defendant
Decision and Order
Speedy Trial Pre-Arrest Delay CPL 30 .20 JUSTICE MARTIN P. MURPHY History of the Case
The People have designated this matter as a Gangs' case.
The defendant is charged with murder in the second degree and two counts of criminal possession of a weapon in the second degree.
It is alleged that at approximately 10:00 P.M. on July 4, 2009 in the vicinity of 160 Rockaway Avenue in Kings County, the defendant who was with a female friend at the time, walked passed Nakie Hector-Bowser.. Upon passing one another, the defendant and Mr. Hector-Bowser got into a verbal altercation. The defendant then displayed a handgun, pointed it at the victim, and fired several shots, striking him at least three times. The victim/decedent was pronounced dead from these gunshot wounds at Brookdale Hospital on July 5, 2009 at approximately 12:35 A.M..
The police began their investigation immediately following the shooting ; they conducted interviews with three confidential witnesses who either described the shooter or identified him as "Sam" ; in addition, the witnesses recalled the details of the shooting on July 4, 2009. The police received additional information from other sources and witnesses on July 5, 2009 and on September 3, 2009.
Between September 3, 2009 and until August 13, 2010, the murder investigation was on-going; the police elected to continue to develop leads and pursue them for additional corroboration.
On August 13, 2010 , a fourth confidential witness provided a statement to the authorities in which he stated that defendant told him that he (defendant) committed the July 4, 2009 murder after an argument with the victim/decedent at which time the victim/decedent bumped into the defendant's girlfriend and made a derogatory comment. That information was also provided to the Kings County District Attorney's Office (DA). That office became actively involved in the investigation.
Between August 14, 2010 and February 12, 2012, the DA's office elected to continue to investigate and pursue additional evidence of corroboration.
On February 12, 2012 , the first witness who had come forward identified the defendant's female companion in a police conducted photo array. That female had been earlier identified by the third witness as the person with the defendant at the time of the shooting and as the person who had placed the gun in her bag after the shooting.
The instant indictment was filed in supreme court on or about May 1, 2012 and an arrest warrant was issued for defendant.
Defendant was arraigned in supreme court on May 8, 2012.
The Instant Motion
In this case, there was a thirty-four month pre-indictment delay from July 4, 2009, the date of the crime, to May 7, 2012, the date of defendant's arrest, pursuant to an arrest warrant, issued after the filing of an indictment on May 1, 2012.
In addition, there have been nine (9) supreme court adjournments following the date of defendant's arraignment until June 13, 2013, the date of the filing of the present motion, that requests dismissal of the indictment based upon an alleged denial of a speedy trial.
To begin, the defendant is charged, inter alia, with murder in the second degree. As such, the prosecution is not subject to the timeliness provisions of CPL sect. 30.10 nor the speedy trial provisions of CPL sect. 30.30. However, all prosecutions are subject to constitutional speedy trial and due process provisions of CPL sect 30.20.
On June 13, 2013, defendant filed the instant motion to dismiss for lack of a speedy trial pursuant to both the Federal and State Constitutions. The motion seeks dismissal of the indictment premised upon the length of the pre-indictment delay, ie., the time between the shooting on July 4, 2009 and May 7, 2012, the date of defendant's arrest, a period of delay of approximately thirty-four (34) months.
Defendant argues that he has been irreparably prejudiced by this delay in that he is presently unable to conduct a timely investigation, since "witnesses who lived in the area are no longer readily available and cannot be found " In addition he maintains that he "...can no longer be expected to recall his exact whereabouts and actions on the night of the murder."
In their affirmation in opposition, dated July 12, 2013 , the People aver they have demonstrated good cause for the pre-indictment delay in that it resulted from their thorough investigation of the crime and the gathering of sufficient evidence to proceed to trial.
After a review of the files in this case, consideration of the arguments and submissions of both counsel and the relevant decisional law, defendant's motion to dismiss for lack of a speedy trial is hereby DENIED in its entirety.
Turning now to defendant's argument that he has been denied his constitutional right to a speedy trial when he was arrested and charged approximately thirty-four months after the shooting death on July 4, 2009.
To begin, this court notes that the United States Supreme Court has drawn a distinction between delays occurring prior to arrest or formal accusation and those occurring afterward. See People v Singer, 44 NY2d 241 [1978]. Whether a delay is characterized as "pre-indictment" or "post -indictment" is often determinative. Delay in bringing a defendant to trial after he or she has been indicted is measured against the Sixth Amendment which takes into account many factors, including actual or potential prejudice to a defendant through the loss of witnesses or dulling of memories. People v Singer, Id., citing Barker v Wingo, 407 US 514 [1972]. Pre-indictment delay, as that alleged here, on the other hand, is governed by the due process clause which generally requires a showing of actual prejudice before dismissal might be warranted. US v Marion, 404 US 307[1971], US v Lovasco, 431 US 783 [1977].
While it is true that an unjustified delay in prosecution will deny a defendant due process of law. People v Decker, 13 NY3d 12 [2009], citing People v Staley, 41 NY2d 789 [1977] and People v Winfrey, 20 NY2d 138 [1967], " a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant." People v Decker, supra, citing People v Vernace, 96 NY2d 886 [2001]. However, where there has been an extended delay, the People have the burden to establish "good cause." People v Singer, supra.
It has previously been held that in determining whether there has been undue delay in a particular case, several factors should be analyzed:(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by the delay. People v Taranovich, 37 NY2d 442 [1975].
As to the extent of the delay, "....there is no per se period (of time) beyond which a criminal prosecution may not be pursued." People v Taranovich, supra. The Taranovich court upheld a two and a half year delay between the date of the crime and the date of the indictment where the delay was caused by the prosecutor's office having lost the indictment paperwork. Moreover, the court specifically noted in that decision that the prosecution did not deliberately attempt to hamper the defendant in preparation of his defense. Also People v Montez, 167 AD2d 356 [2 Dept., 1990] [41 month delay found reasonable by the court , holding that the police were hindered in investigation by un-cooperative witnesses, also noting there was no inference to be drawn that the police delayed in arresting defendant for any "tactical advantage."
Here, the pre-indictment delay of approximately three years was also reasonable based upon the on-going, thorough investigation as conducted by the authorities and is not a sufficient basis for dismissal. It should also be noted that defendant remained at liberty throughout the time of the investigation and was not incarcerated until after an indictment was founded. Thus, no "public opprobrium" attached to defendant, since he could not be considered a suspect by the public at large during the pre-indictment period of time. People v Decker, supra. Thus, the People's delay in prosecution was reasonable and conducted in good faith.
Turning to the second factor to be considered, ie., the reason for the delay, it is well-established that dismissal is not warranted where the People are able to provide a reasonable excuse for the delay in prosecution. People v Singer, supra, People v Staley, 41 NY2d 789 [1977]. In addition, numerous rationales have been accepted by courts for delays. See People v Decker, 13 NY3d 12 [2009] [15 year delay between crime and arrest found to constitute good cause where People initially determined that evidence was insufficient to proceed, but later indicted defendant on virtually identical evidence available to them at the time of the crime where decisions were made in good faith]; also People v Vernance, 96 NY2d 886 [2001] [ 17 year delay found to be based on good cause where witnesses were afraid to co-operate with authorities]; People v DeRosario, 74 AD3d 1356 [2 Dept., 2010] [ 5 year delay acceptable where case was not dormant] and People v Gathers, 65 AD3d 704 [2 Dept., 2009] [ Two and a half year delay upheld in murder case due to an on-going investigation].
Thus, pre-indictment delays based upon the need for further investigation have been deemed to be reasonable. People v Singer, supra. Here, the People's affirmation has fully established that the police department, along with the prosecutor's office, were actively engaged in the case investigation.
As to the nature of the underlying charge justifying the delay, courts have held that it is obvious that serious offenses, such as in those of this case, often require the People to "be more thorough and precise in preparation for trial". People v Taranovich, supra. Also People v Montez, supra and People v McCloud, 48 AD3d 1248 [4 Dept., 2008].
Moreover, as to the reasonableness and extent of defendant's pretrial incarceration, he has been remanded since May 8, 2012. As noted by the People and not challenged by defendant the pretrial, post-indictment delays/adjournments incurred in this case thus far have occurred in good faith, are reasonable, and are the result of ordinary, regular motion practice, discovery and scheduling among the parties and the court in a prosecution for murder.
Finally, there has not been an impairment of defendant's defense in this case that amounts to a denial of due process. The prosecution's good faith decision, as here, to defer commencement of a prosecution, will not deprive a defendant of due process, even though any such delay may cause some prejudice to the defense. People v Taranovich, supra, People v Singer, supra and People v Decker, supra.
In addition, defendant's conclusory assertions of prejudice are belied by the record and discovery documents, previously provided defendant. As noted earlier, defendant admitted shooting the victim within days of the crime. And his recitation of the facts prior to the shooting is consistent with the recollections of the other eyewitnesses.
Therefore, based upon all of the foregoing facts and circumstances, this court finds that the pre-indictment delay was not unreasonable; nor did it constitute a denial of defendant's due process right to a speedy trial.
Accordingly, defendant's motion to dismiss the indictment based upon a lack of a speedy trial is DENIED in its entirety.
The foregoing constitutes the decision and order of the court. Dated: Brooklyn, New York
September 25, 2013
/s/_________
MARTIN P. MURPHY, A.J. S. C.