The People, Appellant,v.Nnamdi Clarke, Respondent.

Brief

N.Y.September 6, 2016

To he argued hy WILLIAM G. KASTi!': (20 \finutes; Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant. - against - NNAMDI CLARKE, Respondent. BRIEF FOR RESPONDENT December 31. 2015 LYNN W. L. FAHEY WILLIAM G. KASTIN Attorneys for Respondent 111 John Street. 9th Floor New York. N.Y. 10038 (212) 693-0085 x240 APL-2015-00076 T~\BLE OF :\UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV PRFLL\HN.\R'{ ST.\TE:\1E.\:T .................................... 1 QUESTIO.\: PRESENTED ....................................... 2 SU:\L\L\RY 01,· ,\RGUMENT ..................................... 2 ST. \TUTE INVOLVED .......................................... ::-> ST.\TEJ\lENT 01; F\CTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1 ntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The DN :\Testing of the Gun ................................. 8 The Speedy Trial :\lotion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The .\djournments and Court Rulings ......................... 11 November 29 2007 to December 3 2007 ................ 11 ................... 12 ..................... 12 i\ugust 25, 2008, to December 18, 2008 .................. 12 December 18, 2008, to February 20, 2009 . . . . . . . . . . . . . . . . . 13 i:ebruary 20, 2009, to June 5, 2009 ....................... 14 lulv 14, 2009, to ~ovcmber 13, 2009 ..................... 19 .Y • November 13, 2009, to December 10, 2009 ............... 26 December 10, 2009, to lanuary 19, 2010 .................. 28 .J • fanuarv 19, 2010, to Februarv 2, 2010 .................... 28 J "' ... Februarv 2 2010 to March 4 2010 . . . .................. 29 The Trial Court's Speedy Trial Decision ........................ 30 'fhe 'frial ................................................. 31 Verdict .................................................. 32 The Appellate Division's Decision ............................ 32 . \RC; UTvlENT THE .\PPELL\TE DIVISION PROPERLY CON CJ ,UDED TH.\TTHE PI ~OPLE V\IJ J ·'.D TC) \CT WITH DUE DILIGENCE .\ND TIL\T MR. CL\RKE'S S'L\TUTORY RIGHT' TO.\ SPEEDY TRL\L \\l\S VIOf ,.\TEDWHI·'.N, PURSU.\NTTO .\ \L\ND.\TORY POLICE DFP \RT\IENT "PROTOCOL," 'ITH·'. POLICE SL:B\IITTED S\Xt'.\BS TO THE L\BOR.\TORY FOR DN \ TESTING, BUT THE PEOPLE \X/.\JTED UNTIL 15 \lONTHS .\Fl'ERTHI 1'. J,.\BOR.\TC)RY 1-L\D FIRST FOUND HU\L\N DN.\ SUIT.\BLE l1'0R CO\fP,\RlSON, .\ND 9 \[C}NTHS .\FTER \IR. CL\RKE \\1,\S INDICTED, BEFORE THEY FOR\L\LLY SOUGHT:\ ON:\ S,\\IPLE FRO\I IIL\I .\S THE TRL\L \v ;\S RE\DY TO BEG IN ......... 34 \. The Statutory Right to a Speedy Trial and the Clear l ,cgislativc I ntcnt to Require the People to .\ct \'\/ith Due Diligence ................. 35 -11- B. The 1\ppellate Division Correctly Found that the People Failed to Act \Vith Due Diligence in Obtaining i\fr. Clarke's DN. \ Sample and that There Were No Exceptional Circumstances, Resulting in 161 Days of Chargeable Time . . . . . . . . . . . 38 C. The 81-Dav Delav that Resulted From the People's Repeated Adjournment Requests to .\wait the Outstanding Frye Decision of. \nother Judge in an Unrelated Case, \X'hen the Defense Never Sought a Frye Hearing, is Chargeable to the People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .~ 7 D. The People ,\re Chargeable with 29 , \dditional Days of Delay for Various .\djournments Thar Preceded Their ,\fay 15, 2009, Reguest for DNA ·1· 11' (:2 cs ng . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ) November 29, 2007, to Decemb<.:r 3, 2007 62 .\ugust 12, 2008, to .\ugust 25, 2008 .......... 63 .\ugust 25, 2008, to D<.:cember 18, 2008 ....... 63 December 18, 2008, to February 20, 2009 . . . . . . 64 CONCLUSION ................................................ 66 -111- 'L\BLE OF AUTHORITIES Cases ?\latter of ,\be , \., 56 N .2d 288 (1982) ............................. 48 People v .. \n 1sc.~o ~~ .1up. .t. ronx ,ty. _; ....... . People v. Fuggazzatto, 96 .\.D.2d 538 (2d Dep't 1983), modified 62 N.Y.2d 862 (1984) ............................... 42 People v. Fulmer, 87 1\.D.3d 1385 Dep't 2011) .................... 54 People v. Garrett, 23 N.Y.3d 878 (201 ............................. 41 People v. ~~, 87 N.Y.2d 792 (1996) .......................... 2, 36, 44 People v. Imbesi, 38 N.Y.2d 629 (1976) ............................. 37 ............................ 37 People v.Jones, 68 N.Y.2d 717 (1986) .............................. 60 Cases (continued) Page No. ~-f==v. Luperon, 85 N.Y.2d 71 (1995) ............................. 46 People v. Lvnch, 103 ,\.D.3d 919 (2d Dep't 2013) ..................... 54 People v. Masselli, 13 N.Y.2d 1 (1963) .............................. 40 People v. McKenna, 76 N.Y.2d 59 (1990) .............. 2, 36, 51, 53,54 People v. i\fcLaurin, 38 N .Y.2d 123 (1975) ..................... 40, 42, 45 People v. i\fegnath, 27 Misc.3d 405 (Sup. Ct. Queens Cry. 2010) ......... 29 People v. Osgood, 52 N.Y.2d 37 (1980) .................... 36, 37, 38, 44 People v. Price, 14 N.Y.3d 61 (2010) ........................... 3, 36, 39 People v. Prosser, 309 N .Y. 353 (l 955) .............................. 37 People v. Rahim, 91 .\.D.3d 970 (2d Dep't 2012) ................... 33, 49 People v. Ramos, 230 ,\.D.2d 630 (1 Dep't 1996) ..................... 40 People v. Robinson, 47 .\.D.3d 847 (2d Dep't 2008) ................ 20, 49 People v. Santorelli, 95 N.Y.2d 412 (2000) ........................... 41 People v. Sibblies, 22N.Y.3dl174 (2014) .......................... 3, 43 I) • n . ·l ~ ,-., • • ~ J / ~ / u ~ ~ ~' / ,-, eople v. ::-imit -i, oL J"-. .Lu ()Io ( l 'J'J j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l).) Cases (continued) Page No. People v. Stirrup, 91 N.Y.2d 434 (1998) .......................... 56, 63 People v. \vashington, 86 N.Y.2d 189 (1995) People v. \vashington, 43 N .Y.2d 772 (1977) 17, 33,39 People v. \X/earen, 98 A.D.3d 535 (2d Dep't 2012) ............... 33, 45, 49 People v. \X/ells, 24 N.Y.3d 971 (2014) .............................. 39 People v. \X'illiams, 244 .\.D.2d 587 (2d Dep't 1997) ................ 20, 49 People \1 • \X'orlev, 66 N.Y.2d 523 (1985) .......................... 37, 39 Vanderhoef v. Silver, 112 .\.D.3d 1174 (3d Dep't 2013) ................ 59 C.P.I ,. § 30.20 .................................................. 37 C. P.L. § 30.30 ............................................... passim COURT OF :\PPE:\LS STXfE OF NE\X! YORk THE PEOPLl OF THE STATE 01,· NE\X! YORK, \ppellant, -against- NN :\I\ID I CI '"\RK I':, Respondent. PRELIMINARY STATEMENT By permission of the Honorable Jonathan I .ippman, Chief Judge of the Court of .\ppeals, the People appeal from a November 12, 2014, decision and order of the . \ppellate Division, Second Department, reversing a December 16, 2010, judgment of the Supreme Court, C1ueens County, on speedy trial grounds . .\lr. ( ]arke was convicted, after a jury trial, of two counts of second-degree criminal possession of a weapon, first-degree reckless endangerment, and unlawful possession of marijuana, and sentenced to concurrent prison terms aggregating 21 years to life and a Sl 00 fine. The .\ppellate Division reverseJotice of Readiness the same day (S. \ 2-10, 11; . \ 4 7, 124-25). The People claimed that they should be charged with only 7 days for the time period between the ;\ugust 18rh vote to indict and their ,\ugust 25rh Notice of Readiness 47). The court concluded that, because there \Vas no statutory excuse for the delay between the ,\ugust 1211i expiration of Mr. Clarke's final waiver and the . \ugust Notice of Readiness, 13 days were chargeable to the People C\ 125) . . \ugust 25, 2008, to December 18, 2008 (9 Days) .\t i\Ir. Clarke's September 8, 2008, arraignment on the indictment, the 12 prosecutor stated he was "ready for trial" (S.A 13; ,\ 126). "\ schedule was set for defense motions; counsel filed his omnibus motion on November 13, 2008; and after a series of adjournments, the People filed their answer on December 18, 2008 (S,\ 14, 16, 20; ,\ 48, 126). Defense counsel argued in his speedy trial motion that the time period from ,\ugust 25, 2008, to September 9, 2008, was chargeable to the People because their ,\ugust 25r1i Notice of Readiness was negated by their later request, made in ;\fay 2009, for DN,\ evidence (:\ 55-56). The prosecutor asserted that no time was chargeable to the People (,\ 47 -48). The court charged 9 days to the People for the time period between December 9, 2008, and December 18, 2008, concluding that it "exceeded the reasonable period within which the People should have answered" the omnibus motion (,\ 126-27). December 18, 2008, to h.'.bruary 20, 2009 (3 Days) On January 12, 2009, the court issued its omnibus decision and pre-trial hearings began before Justice Joseph c;rosso 127). On February 17, 2009, after the case had been adjourned for a continued hearing, the People's witness was unavailable, and the case was adjourned to February 20, 2009 (S:\ 21-22; . \ 48). 13 The People acknowledged that they should be charged 3 days from February 17, 2009, to February 20, 2009, due to the unavailability of their witness 48). The court did not address either the unavailability of the People's \Vitness or this specific adjournment (See,\ 127). February 20, 2009, to June 5, 2009 (0 Days) Pre- trial hearings were completed on 1 •'ebruary 20, 2009. 'l 'he hearing court suppressed one gun but denied suppression of the second gun, which i\lr. Clarke had allegedly fired ("\ 3 7-41; S:\ 23). The case was scheduled to begin trial on i\farch 23, 2009 (\ 41-42, 48, 127), but was adjourned on consent to 1\pril 23, 2009 (.\ 48, 59-60, 127), when the People again stated they were ready for trial(,\ 62). The case was subsequently adjourned on consent to i\fay 15, 2009, for trial 49, 62, 65-66, 68-69, 127). On J\fay 15, 2009, the prosecutor announced that the People were not readv for trial because the detective who took statements from i\Ir. Clarke was hospitalized and unavailable(;\ 49, 72-73, 127). In addition, the court signed an order to show cause that the People had filed the previous day, requesting a DN:\ sample from J\Ir. Clarke for comparison with the D:\J ~\ recovered from the unsuppressed gun (\ 49, 71, 127; S, \ 24-29). Defense counsel repeatedly objected, stating that the defense was "ready to go to trial today," and "This case is an old case. \Ve have done the hearings. \X/e're ready to go" 71). Counsel 1-t also estimated that it would take 60 days to receive the DN :\ results, further delaying the case, and asked the court to rescind the order to show cause, which it had already signed 71). The prosecutor stated that, according to ,\fr. Clarke's rap sheet, he had refused to provide DN ;\ when he was arrested ("\ 72). The prosecutor added: Normally what happens is the medical examiner's office pulls it up when there was a name and it's connected to my case. W c physically checked back all our files. \X/c never received a response from the medical examiner that any DNA was recovered when, in fact, it had been recovered and was usable for testing, PCR tests both from the grip and strap of the gun. . . . \'Ve find ourselves in a position where he refused DN,\. Now we can have DN.\. I would like to have him tested. I was told it takes 60 days, not in my control .... (.\ 72-73). Defense counscl reiterated his objection to the prosecutor's late request for DN .\ testing of a swab from Mr. Clarke, noting that the case and the defense were ready for trial, J\lr. Clarke had been incarcerated for a lengthy period of time (18 months), and that any time to conduct DNA testing of Mr. Clarke should be chargeable to the People 73-7 4). l''ollowing the court's suggestion that opposition to the order to take a DN swab from I\fr. Clarke should he done in writing, counsel stated that he \vould need a week and a half to do so(:\ 73-74). The prosecutor responded that they were not responsible for any delay in obtaining the lJ!\J.\ results, claiming again that it was "out of our control" 15 The matter was adjourned to June 5, 2009, for the court's decision whether to grant the order to show cause, with defense counsel having the opportunity to file opposition papers beforehand (c\ 7 4-7 5). Defense counsel argued in his speedy trial motion papers that, once the People requested an adjournment to obtain DNc\ evidence, all subsequent adjournments until the date the results were turned over to the defense on November 13, 2009, should be chargeable to the People because of their uniustified delay in seeking the DN evidence (:\ 45, 56). Defense counsel further contended that the evidence the People sought was unnecessary, because police witnesses had allegedly observed Mr. Clarke in possession of the gun that was the subject of the DN" \ testing(.\ 45, 56). The People responded that the time was not chargeable to them because of the detective's illness, the filing of the order to show cause to obtain :\Ir. Clarke's DNA sample, defense counsel's request to respond to it, and the court's need to decide it 49). The People further maintained that the entire time period between the J'viav 15, 2009, signing of the order to show cause and ovcmber 13, 2009, the date when the final DNA results were provided to the defense, was excludable, because (1) "f t]he taking of swabs for DN.\ analysis is ... pre-trial discovery under C.P.L. § 240.40(2)(b)(v) and, thus, is excludable for speedy trial purposes under C.P.L. § 30.30(4)(a)" and 16 "the lack of' the UN \ evidence was "an 'exceptional circumstance' pursuant to C.P.L. § 30.30(4)(g)" The People claimed that requiring them to seek DN, \ swabs at the time of arrest in every DNA-based prosecution, or face having the time chargeable, "would place a tremendous burden on prosccutorial, judicial and defense resources, not to mention on the OC\IE analysts"(,\ 53). The People stated that " [ti he vast majority of D N "\-based prosecutions arc resolved by guilty pleas taken prior to ... indictment," and to require "the immediate application" for DNA testing would "slow the prosecution and plea bargaining stages of each case pre- indictment" and "unduly encumber all of the parties with a lengthy procedure that is, in most cases, unnecessary" (~\ 53). The People also maintained: frontloading the taking of [ivlr. Clarke's] confirmatory DN,\ sample would not have aided !him] in any \vay, nor would it have made the process of his particular case faster testing and analysis would take the same period of time no matter when it commenced, assuming that [Mr. Clarke's] proposed solution did not have the effect of slowing the analysis still further by overwhelming the OC~IE with confirmatory buccal swabs. This result, which has no benefit to [J\lr. Clarke] and potentially serious negative effects for the criminal justice system as a whole, simply cannot be what the [Court in People v. \V'ashington, 43 N.Y.2d 772 (1977) I or the New York State Legislature meant by "due diligence" 53). 17 The court ruled that no time should be charged to the People for this time period, on the ground that the People's order to show cause was pending(:\ 127). The court also noted, "la]lthough not fully articulated in these motion papers, this application I for DN :\ testing] was apparently made necessary" by the hearing court's February 20, 2009, ruling, made approximately three months before the People filed their order to show cause for a DN ,\sample, suppressing one of the guns recovered by the police at the scene June 5, 2009, to July 14, 2009 (39 Days) On June 5, 2009, l\fr. Clarke was not produced, but defense counsel stated that l\fr. Clarke consented to the DN"\ swab("\ 49, 77, 128). Referring to his previous objection when he "made [the! record earlier" and stated that the defense was "ready to go forward with this case," counsel emphasized that the prosecutor's request to obtain l\lr. Clarke's DN \sample was "a very late motion" and that the defense had no control over the waiting period for the DN,\ test results(.\ 78). The prosecutor asked that the court change the date of the order directing the swab, because he would need a "takeout order to get [l\Ir. Clarke] swabbed," since "we did not have a detective available todav to swab him" 77-78). The prosecutor stated, "we can swab him within two weeks and then OCl\fE requires days" 78). The case was adjourned to July 14, 2009 (.\ 79). 18 Defense counsel argued in his speedy trial motion that this time should be charged to the People because, inter alia, the People had delayed seeking the DN,\ evidence (1\ 45, 56). The People responded that the time was not chargeable to them because J\1r. Clarke "had yet to comply" with the order to show cause and because ;\fr. Clarke's absence from court that day was due to him being quarantined at Rikers Island 49). The court concluded that the People's allegation that ;\Jr. Clarke was quarantined was undocumented, and charged the People 39 days (,\ 128). July 14, 2009, to November 13, 2009 (161 Days) ( )n July 14, 2009, defense counsel noted that \fr. Clarke had been swabbed and that the parties now had to wait for the results (. \ 81 ). The prosecutor requested a trial date of September 29, 2009, or thereafter, because it would take 60 days to get the results from OC\IE 81). Defense counsel noted that he might need to get his own DN .\ expert, stating, "[tjhis trial has been stalled for the DN \,"and adding, "[w]e were ready to go to trial except for the DNA swabbing" 82). Counsel emphasized: we were ready to try the case a month and a half ago. The D.:\. wanted a swab for DN"\. I just wanted to make that record. He has been in a long time 82). 19 The prosecutor claimed that Mr. Clarke had refused to be swabbed; that the sample was taken only after defense counsel had interceded; and that the time period, including the time to obtain the results, was not chargeable to the People C\ 82-83). Defense counsel disputed the prosecutor's account, noting that he had asked to be present during the swab but the detective had attempted to take the swab when counsel was absent; after counsel was present, ivfr. Clarke voluntarily provided the DN,\ sample(\ 83). Counsel referred to§ 30.30 and stated, "[w]e have been ready two months ago to go to trial" 83). The case was adjourned to September 29, 2009 ("\ 83). Defense counsel argued in his speedy trial motion papers that this time should be charged to the People, due to, inter the People's late request for DN,\ testing(,\ 45, 56). The prosecutor contended that no time was chargeable, pursuant to C.P.J,. 30.30(4)(a) and (b) (,\ 49-50). Citing People v. Robinson, 47 ,\.D.3d 847 (2d Dep't 2008), and People v. \'Villiams, 244 A.D.2d 587 (2d Dep't 1997), the court charged no time to the People, reasoning that J \ testing, the same process that was used in \fr. Clarke's case (. \ 90-93). The People \vere about to submit their brief in Justice 1-Ianophy's case, and the prosecutor believed he 22 would reach a decision "within a month" (A 91). The prosecutor acknowledged that all her witnesses were available and ready to testify 9 . Nevertheless, she asked the court either to wait for Justice Hanophy's decision, which "would [a]ffect, jurisdictionally, what occurs in the acceptability of this matter," or to order a lengthy hearing in Mr. Clarke's case at "great expense" (A 91-92). She added, "[a]t this juncture J have to wait for that decision"(.\ 91 ) .. \sked by the court when the People would be ready to go to trial, the prosecutor responded, "[w]e're awaiting decision. Once that decision is made I'll go from there" (A 93). Defense counsel again objected to the People's late request to obtain a DN,\ sample and await the results (-\ 93-99). Counsel noted that the case had been ready for trial months earlier, but the prosecutor sought a DN.\ sample after the case "had been pending for a year," pre-trial hearings had concluded, and investigations had been conducted (;\ 93-94). Counsel stated that he had been waiting four months for the DN \ results, then received "one sheet of paper ... saying there was some kind of hit," and now recerved a report that indicated it was not a standard DN.\ test that had been conducted(.\ 94). Counsel stated the People should be precluded from using the evidence, argued that the case should "go to trial now," and objected to the prosecutor's request for additional delay until Justice Hanophy reached his decision(.\ 93-95). Counsel also pointed out 23 that the People could have taken Mr. Clarke's DNA swab when he was arrested two years earlier if it was needed for the case (A 95). Defense counsel never stated an intention to seek a I ;'rye hearing. The prosecutor claimed that Mr. Clarke had refused several times to provide a DN1\ sample, that the People had to seek an order to show cause, and that they had "no control over the OCME time frame" 95-96). Defense counsel contested the claim that ;\fr. Clarke had refused and again questioned why the People did not request a DN.\ sample at the time of Mr. Clarke's arrest(,\ 95- 97). Counsel noted that his DNA expert needed the complete DNA report, which the People acknowledged had not yet been turned over(,\ 98). \'Vhen the prosecutor claimed that the defense was not ready either, because they could not proceed to trial without a DN:\ expert, defense counsel stated, "lt]his delay was not caused by me" (A 98-99). Defense counsel requested an adjournment until November 6, 2009, to speak to a DN .\expert C\ 99-100). ,\lthough counsel stated that he did not have an objection to the time being charged to the defense, he also asked the court to reserve decision as to whether the time was chargeable to the People or the defense (-\ 99-100). The prosecutor stated that she would attempt to obtain the missing DN,\ paperwork, and the case was adjourned to November 6, 2009 (.\ 100-01). 24 Defense counsel argued in his speedy trial motion that this time should be charged to the People, because, inter alia, they delayed seeking DN"\ testing(:\ 45, 56). The prosecutor claimed that no time should be chargeable because defense counsel "consented on the record to the time being excludablc" 50). The court did not charge any time to the People(:\ 129). Focusing on the outstanding DN ,\ file, it stated that a delay in responding to discovery demands "neither renders a statement of readiness illusory nor affects the People's readiness for trial" ("\ 129). On November 6, 2009, defense counsel said he still had not received the complete DNA report and requested that the case be adjourned for another week for a control date, but stated, "[i]t's my position that all this time is chargeable to the People" (. \ 103-04). The prosecutor claimed that the time was excludablc because "[w]e need these records in order for us to be in a trial ready position" (,\ 104). The prosecutor added that the C )CME records were "not in our control," and referred to Justice Hanophy's anticipated decision 104-05). The matter was adjourned to November 13, 2009 106). Defense counsel argued in his speedy trial motion papers that this time should be charged to the People, again primarily because the People were late in seeking DNA testing 45, 56). The prosecutor contended that no time should be charged, reasoning that the OCME was "not within their control" 51 ). The court ruled that no time was chargeable because of the outstanding DN,\ report and the defense request "to have an expert review that file in preparation for trial" (.\ 129-30). November 13, 2009, to December 10, 2009 (27 Days) On November 13, 2009, the People finally provided the complete DN.\ report to the defense (.\ 108-09). Defense counsel confirmed that he would need his DN ,\ expert to review the report, and requested an adjournment until December 10, 2009 (.\ 109). Counsel again reiterated that the defense had been "ready for trial in ;\fay," and that the prosecutor only then decided to request a DN. \ swab from Mr. Clarke ( \ 109). The People responded that they were still awaiting Justice tlanophy's decision and now expected it by mid-January 2010 109a). The prosecutor added that, if the parties did not wait for the decision, they could begin their own six- to eight-month-long~ hearing(,\ 109a). The court questioned whether a judge of coordinate junsdiction would be bound by Justice Hanophy's determination; the prosecutor responded that the decision would be "quite persuasive" (,\ 109b). The court also noted that ;\fr. Clarke's case had been pending since November 2007, and that the People "could have taken the swab in November of '07 instead of ;\fay of '09" 26 109b). \'Vithout further explanation, the prosecutor responded that "OC\f E changed its requirements in the last couple of years" (:\ 109b). Defense counsel, noting that Mr. Clarke "has been incarcerated for some time" (two years), requested a control date of December 10, 2009, so that the defense expert could examine the Dl\J A report he just received case was adjourned to December 10, 2009 (,\ 109c). 109c). The Defense counsel argued in his motion papers that this time period was chargeable to the People because the defense never requested a~ hearing and Justice Hanophy's decision was not binding on this case 56). The prosecutor maintained that no time was chargeable because a control date had been set for defense counsel's expert to review the DN.\ results(\ 51). Contending that the People were "not in control of the OCME and their records," the prosecutor noted that defense counsel had repeatedly indicated his readiness but requested "further time for his expert to review the files" ( :\ 51). The court concluded that no time was chargeable to the People, because the case had been adjourned for the defense expert to review the OCT\fE report in preparation for trial (\ 130). The court also concluded that "it seems clear" that the entire time period beginning with the People's filing of the order to show cause should not be chargeable 130). The court did note that i\lr. Clarke had "a colorable argument" regarding the time penod between the initial DN :\results 27 on October 7, 2009, and the date on which the People provided the complete DN report on November 13, 2009 ("\ 130). However, the court ultimately concluded that these 37 days should not be charged to the People because it was "an issue regarding discovery," and that even if they were, it would not change the outcome of the speedy trial motion(,\ 130-31). December 10, 2009, to January 19, 2010 ( 40 Days) On December 10, 2009, a substitute trial assistant announced that the People were ready for trial (A 111). Defense counsel said that he was ready, but agreed to an adjournment to January 19, 2010, so that he could file a speedy trial motion C \ 111-12). Defense counsel argued in his motion papers that this time period was chargeable to the People because they were still awaiting Justice I-lanophy's decision (,\ 56). The People claimed no time was chargeable, since defense counsel had requested the adjournment(~\ 51). The court did not charge the People any time, reasomng that the adjournment was requested by the defense(\ 131). January 19, 2010, to February 2, 2010 (14 Days) On January 19, 2010, the People requested an adjournment because the assigned prosecutor was on trial in another case and also "was waiting" for Justice Hanophy's decision, which was expected "either tomorrow or the 25ih" (.\ 114). '.28 The court responded thatJ ustice ~Ianophy's matter was "not on this case," and it had told the assigned prosecutor "it couldn't possibly be binding on this " case 114-1 .. \t the People's request, the case was adjourned to February 2, 2010 (~\ 115). Defense counsel argued in his motion papers that this time period was chargeable to the People because they were awaiting Justice Hanophy's decision, the defense never requested a Frye hearing, and Justice Hanophy's decision was not binding on this case (.\ 56). The prosecutor conceded that time was chargeable because the adjournment was requested by the People, but miscalculated that 11 days, instead of 14 days, were chargeable for the adjournment from January 19 to l''ebruary 2, 2010 51). The court charged the People u,rith 14 days due to their request for an adjournment(~\ 131). February 2, 2010, to March 4, 2010 (0 Days) On February 2, 2010, new counsel, retained by 1\lr. Clarke, requested an adjournment until :\farch 1, 2010, noting that, although Justice Hanophy had issued an oral decision, his written decision had not yet been filed C\ 118). s 'T-hc \x.,-rittcn decision \Vas issued on Fcbruarv 8, 2010. Misc.3d 405 (Sup. Ct. Queens C:n. 2010). 29 The People stated they were ready to proceed, and requested April 7, 2010 119). Counsel consented and the case was adjourned to that date (.:\ 119). Counsel filed Mr. Clarke's speedy trial motion on March 4, 2010 (A 43-45). 1n their motion papers, the People stated that none of this period should be charged because new defense counsel had requested the adjournment("\ 52). The court agreed C\ 131). The Trial Court's Speedy Trial Decision The total delay alleged by ?\fr. Clarke in his speedy trial motion was 315 days (,\ 43-45). After the People claimed that only 21 days were chargeable to them (1\ 53),<' defense counsel's reply alleged includable adjournment periods that totaled 315 days, but which counsel miscounted as adding up to 284 days (, \ The court concluded that 79 days were chargeable to the People, including 21 days within the time periods that the People had conceded, 4 days for the delay between the felony complaint and arraignment, 6 days between the expiration of <>The time period conceded bv the People \Vas actually :24 days. See footnote 3, supra. In his reply, defense counsel stated that 151 days elapsed between the People's Mav 15, :2009, request for i'\lr. Clarke's DN" \sample and when the D"'l \results were finally received l:ff the defense on N m·ember 13, :2009 This time period is actualh 18:2 , the additional 31 davs that counsel failed to include rnatchcs rhc nun1bcr of days he originallv claimed in his speech· trial motion, 31 S days. 30 1\fr. Clarke's waiver of speedy trial rights and the vote to indict, and 9 days due to the People's late response to the omnibus motion (;\ 120-31). The court added that, even including the period from October 2009, when the initial DN,\ results were provided to the defense, to November 13, 2009, when the entire DNA evidentiary file was provided to the defense, a total of only 116 days would be chargeable(;\ 131). The Trial ;\t the trial that began in September 2010, the People's witnesses stated that at approximately 12:40 a.m. on J\J ovember 29, 2007, Sergeant Andrew Leeb and Officers Francisco Ponce and fvlichael Grimm saw ,\fr. Clarke walking in an "unusual" manner. \Vhen the police told him to stop, 1\f r. Clarke ran, fired a gun, and dropped it. He was apprehended and marijuana was found on him. The area surrounding the gun was secured and no one touched the gun until the Crime Scene nit arrived (SA 32-34, 62-65, 68). The New York City Police Department Patrol Guide required that, when a gun is fired at a police officer and then discarded, the gun "must" be swabbed by the Crime Scene Unit for DN ;\evidence pursuant to "protocol" (SA 34-36, 39-41 ). ~\ccordingly, either the responding detectives or the duty captain contacted the Crime Scene Unit so that they could conduct Dt~"\ testing of the gun (S.\ 66-67). (~rime Scene Unit 31 Detective Bruce Kapp arrived and swabbed the trigger, back strap, and grip for DNA; the three swabs were submitted by police personnel to OCJ\IE, which received the swabs on December 1, 2007 (S,\ 43, 47-60, 65-67; 137). The swabs of the backstrap and grip yielded a mixture of at least two people's DN,\. To extract the small amount of DN,\, analysts at OC\IE performed "high sensitivity," also known as "low copy," testing. J\fr. Clarke's ON,\ was on the grip and the backstrap. Verdict The jury acquitted Mr. Clarke of two counts each of attempted first- and second-degree murder and attempted aggravated assault upon a police officer, but convicted him of two counts of second-degree criminal possession of a weapon, first-degree reckless endangerment, third-degree criminal possession of a weapon, and possession of marijuana. The . \ppellate Division's Decision On appeal, Mr. Clarke argued, inter alia, that he was deprived of his statutory right to a speedy trial by (1) the People's unreasonable delay and lack of due diligence when they failed to seek a DN.\ sample from him until 9 months after he was indicted and (2) the People's further 81-day delay awaiting Justice Hanophy's decision regarding the admissibility of low copy DN,\, which l\lr. 32 Clarke had not challenged. The :\ppcllatc Division, Second Department, reversed the judgment, vacated the order denying J\lr. Clarke's speedy trial motion, and dismissed the indictment(.\ 2-3). The court noted that the People moved to take an oral swab from Mr. Clarke for a DN,\ test on :\fay 14, 2009, which was more than 17 months after his November 2007 arrest and December 2007 arraignment, 9 months after his .\ugust 2008 indictment, and nearly 3 months after the hearing court suppressed the other gun (;\ 2-3). Recognizing that J\fr. Clarke consented to the taking of the oral swab on June 5, 2009, and that the People did not produce a complete DN,\ report until November 13, 2009, the court ruled that because the People failed to exercise due diligence in obtaining the DN.\ sample from [:\fr. Clarke], the 161-day period between June 5, 2009, and November 13, 2009, was not cxcludable on the ground that their need to obtain the DN,\ test results constituted excusable, exceptional circumstances (sec CPL 30.30[4] fg]; People v. \X1caren, 98 A.D.3d 535, 538, 949 N. Y.S.2d 170; People v. Rahim, 91 :\.D.3d 970, 972, 937 N.Y.S.2d 325; sec generally People v. \X1ashington, 43 N.Y.2d 772, 773, 401 N.Y.S.2d 1007, 372 N.E.2d 795) .. \dding this period of time to the periods of delay correctly conceded by the People, the People exceeded the six-month period in which they were required to be ready for trial (see CPL 30.30fTJ[a]) (,\ 3). On :\larch 25, 2015, ChicfJ udgc Lippman granted the People leave to appeal (,\ 1). 33 ARGUMENT THE ,\PPEI J ,:\TE DIVISION PROPERLY CON CJ ,UDED Tf-L\T THE PEOPLE E\ILED TO ACT \VlTH Dur DILIGENCE /\ND TF-L\T I\IR. CJ ,,\RKE'S STATUTORY RIGHT TO;\ SPEEDY TRI \L \V,\S VlOJ ,ATED WHEN, PURSLL-\NTTO A I\L\ND.\TORY POLlCJ,: DEP,\RTMENT "PR(Yl'C)COJ,," 'JTIE POJ JCE SUBI\HTTED S\X/,\BS TO THE L\BORATORY FOR DN;\ TI·'.STlNG, BUT THE PEOPLE WAITED UNTIL 15 MONTHS J\FTER THE L\BORATORY HAD FIRST FOUND HUMAN DN1\ SUIT:\BLE FOR COMP.\RISON, AND 9 MONTHS AFI'ER MR. CJ ,.\RKE \'VAS INDICTED, BEFORE THEY FORMALLY SOUGHT.\ DN,\ SA.i\IPLE I·'RO;\I HIM .\S THE TRL\J, \VAS Rl·'..\DY TO Bf·'.GIN. Mr. Clarke was arrested on November 29, 2007. Pursuant to a mandatory New York City Police Department "protocol," a gun recovered at the scene at the same time as his arrest was swabbed for DN .\,and OC\II ~received the swabs for testing within 2 days. OCJ\fE determined, as early as l •'ebruary 11, 2008, that human DN ,\ suitable for comparison had been recovered. I Iowever, it was not until May 2009 - 15 months after OCivfE's determination, 9 months after obtaining an indictment, and after the People had made three declarations of readiness - that the People finally formally sought DN. \ evidence from .\fr. Clarke. :\fter obtaining .\fr. Clarke's DN.\ in June 2009, the People requested numerous adjournments because the testing was pending, and it was not until November 13, 2009, that the People provided the complete DN \results to the 34 defense. As the "\ppellatc Division found, the 161 days from June 5, 2009, when i\fr. Clarke consented to the DN"\ testing, until November 13, 2009, when the complete DNA results were provided to the defense, was chargeable to the People. Even after the complete DN"\ results were disclosed on November 13, 2009, the People repeatedly asked for adjournments, claiming they needed Justice I-fanophy's Em decision in an unrelated case concerning the admissibility of the type of DN"\ testing used in this case. The People made these adjournment requests even though defense counsel never requested a Frve hearing. The 81 days from November 13, 2009, to February 2, 2010, is also chargeable to the People. In conjunction with the 24 days included within the time periods that the People conceded, and 19 other days correctly charged to the People by the hearing court, a total of 285 days were chargeable to the People, far exceeding the 182-day limit applicable in this case. The :\ppellatc Division properly concluded that i\fr. Clarke's statutory right to a speedy trial was denied and this Court should affirm that decision. CP.J,. § 30.30. ,\. The Statutory Right to a Speedy Trial and the Clear Legislative Intent to Require the People to Act \"lith Due Diligence Ne\v York's speedy trial statute, C.P.J ,. § 30.30, mandates that, when a defendant is charged \Vith a felony, the People must be ready for trial within six 35 months of the commencement of a criminal action. C.PJ ,. §30.30(1 )(a). 8 This Court has recogni?:ed that "it is glaringly apparent that the main thrust of the CPL 30.30 is to require the prosecution to be prepared within six months," People v. Berkowitz, 50 N.Y.2d 333, 349 (1980), and "the dominant legislative intent informing" the statute, and its "principal underlying purpose," is "to discourage prosecutorial inaction." People v. Price, 14 N.Y.3d 61, 64 (2010). Sec also People v. Goss, 87 N.Y.2d 792, 796 (1996) (New York's speedy trial statute was enacted to "address!] ... the problem of prosccutorial readiness"); People v. Sinistaj, 67 N.Y.2d 236, 239 (1986) (§ 30.30 "is purely a statutorv 'readiness rule"'). The purpose behind the speedy trial statute is to ensure "the movement of cases to trial" in a timely fashion, People v. ,\fcl(cnna, 76 N.Y.2d 59, 65 (1990), and § 30.30 is "designed to insure to the public diligent prosecution of criminal charges filed in court." People v. Osgood, 52 N.Y.2d 37, 41-42 (l 980). Sec also People v. Anderson, 66 N.Y.2d 529, 535 n. 1 (1985) (noting that the Crime Control Counsel memorandum, which went to the J ,egislature with the bill that enacted § 30.30, stated that the purpose of the bill was "I tjo promote prompt trials for defendants in criminal cases") (citing i\kKinney's Session Laws of NY, 8 In this case, six months from No\•ember 29, 2007, the dare the . complaint was filed, \',"3.S 29, 2008; the People had 182 . in \vhich to be l?eop1e Y. 91 N.Y.2d 795, 798 (1998); \'.Cortes, 80 N.Y.2d 201, 207 n.3 (1992). at 3259); People v. Worley, 66 N.Y.2d 523, 527 (1985) ("In enacting CPL 30.30 the I ,cgislature intended to impose an obligation on the People to be ready for trial" and "intended CPL 30.30 to address delays caused by the People"). The speedy trial requirement "promote[ s] the efficiency of the criminal justice system." People v.Johnson, 38 N.Y.2d 271, 276 (1975). This Court has also repeatedly recognized that§ 30.30 "in large part serves the same purposes" as the speedy trial guarantee that is embodied in C.P.L. §30.20, which is to "ensure fair and humane treatment of an accused person by protecting him or her against prolonged imprisonment while awaiting trial," offering "relief from the anxiety and public suspicion that accompanies a criminal accusation \vhich remains untried," "reducing the possibility that through the loss of witnesses or the dulling of memory the means of proving his or her innocence may be lost," and serving "the interests of society in seeing that those accused of crime arc swiftly brought to justice." ,\ndcrson, 66 1\".Y.2d at 534-35 (citing Johnson, 38 N.Y.2d at 276; People v. Imbesi, 38 N.Y.2d 629, 631 [1976]; People (recognizing the same "adverse effects the delay may have on the defendant's rights which in this State has always been one of the prime objectives of the various statutes requiring prompt disposition of criminal charges"). Because it 1s plain that the intent of§ 30.30 is to discourage prosecutorial inaction and guarantee prompt prosecutorial readiness for trial, periods of delay caused by the People's inertia, indifference, or passivity cannot be condoned. Public policy, the stated purposes of§ 30.30, and the accompanying benefits of protecting defendants from prolonged imprisonment while awaiting trial, minimizing the possibility of lost witnesses or the dulling of memory, and enabling the People to try cases effectively, all require the People to take a proactive approach in preparing for trial. Sec Osgood, 52 N.Y.2d at 45 ("the six- month ready rule was meant to eliminate unjustified delays and was not intended to provide rewards or incentive for delay"). B. The Appellate Division Correctly hmnd that the People Failed to . \ct \Xii th Due Diligence in Obtaining ~fr. Clarke's DN. \ Sample and that There \'Vere No Exceptional Circumstances, Resulting in 161 Days of Chargeable 'l'imc To justify their extraordinary delay in requesting :\Ir. Clarke's DN"\, the People claim there were "exceptional circumstances" resulting from "the unavailability of evidence material to the people's case, \Vhcn the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable 38 period." Brief for Appellant at 25-27 (quoting C.P.L. § 30.30(4)(g)(i)).'J This Court has repeatedly made clear, however, that in considering whether an "exceptional circumstance" exists in this context, the key consideration is whether the prosecution acted vigorously and affirmatively in obtaining the new evidence, since the "dominant legislative intent" behind § 30.30 is "to discourage prosecutorial inaction." Price, 14 N .Y.3d at 64. Sec People v. \'\!ells, 24 .Y.3d 971, 973 (2014); Sinistaj, 67 N.Y.2d at 239; "\nderson, 66 N.Y.2d at 535; \vorlev, 66 N.Y.2d at 527. 1\ccordingly, as this Court declared nearly 40 years ago, in a case relied upon by the Appellate Division (,\ 3): The statutory ["exceptional circumstance"] exception ... if it is to be given reasonable effect and it is to fulfill the legislative purpose, must be limited to 111stances in which the prosecution's inability to proceed is justified by the purposes of the investigation and credible, vigorous activity pursuing 11. People v. \vashington, 43 N.Y.2d 772, 774 (1977) (emphasis added). In this case, it is plain that the People failed to meet the "exceptional circumstance" standard due to their clear lack of "vigorous activity pursuing" the DN testing that began immediately after l\Ir. Clarke's arrest. The gun was 'J In claiming "exceptional circumstances," the People cite both the pre-readiness delay statute, C.P.L. and the post-readiness delay statute, C.P.L. 30.30(3)(b). Brief for .\ppdlanr at 4, 25-27. The :\ppellate Division, in concluding that the People failed to establish exceptional circumstances, cited 30 _\ s \vill be discussed, under either statutory subsection, the People failed to establish that the time period \Vas cxcludablc. 39 recovered at the scene on November 29, 2007, swabbed for DNA by the police pursuant to a mandatory Police Department "protocol," and submitted to OC\1E, \vhich received the swabs on December 1, 2007 \ 34-36, 39-41, 43, 60, 65-67; _\ 137). :\s early as February 2008, 0Cl\1E had determined that the mixtures of human DNA found on the swabs were "suitable for direct comparison," and that "[~urthcr analysis could be done upon submission of a blood or saliva sample from a suspect" (,\ 134). Since the police submitted the swabs to ( )CMI ~two days after the incident, the People arc imputed with this knowledge and cannot now claim a lack of awareness. In fact, it is well settled, in the speedy trial context, that Knowledge on the part of the police department would, of course, be imputed to the District .\ttorney's Office. ,\ defendant ought not be penalized because of any inadequacy of internal commu111canon within the law enforcement establishment. People v. ,\kLaurin, 38 N.Y.2d 123, 126 (197 5). Sec also People v. :i\fassclli, 13 N.Y.2d 1, 4 (1963) ("since the District :\ttorney and the Commissioner of Correction arc both agents of the State in the criminal law enforcement field, it is inappropriate that the default of either or both of them be charged to the prisoner who is helpless in the matter"); People v. Ramos, 230 .\.D.2d 630, 630 (1st Dep't 1996) (knowledge by police imputed to District ~\ttomcy's Office, and 40 defendant cannot be penalized due to failure to communicate). w For this reason, it is irrelevant whether the prosecutor first learned there was crime-scene DN.\ on ~fay 13, 2009, when they "received a fax from the OC\1E containing a report that showed, for the.first time," that DN ;\suitable for comparison had been recovered. Brief for ;\ppellant at 21, 28, 34 (italics in original). \Vhat the People simply ignore is that the police submitted the recovered gun to OC\1E for DN \ resting almost 18 months earlier. In fact, at trial, the People's own witness testified that it was a required Police Department "protocol" to test any discarded weapon that had been fired at an officer for DN1\ (S:\ 34-35, 39-41 ). That is precisely why the People sought a sample oL\Ir. Clarke's DN,\ upon his November 2007 arrest(.\ 72). 11 . \ccordingly, the People cannot reasonably claim that they "exercised due diligence" to begin the DN:\ testing procedure because they had not learned about the existence of crime scene DN"\ until Mav 2009. OC?\1E had 10 This Court has consistently applieJ.\ sa1Ttple did nut affect the l)eople'~ abilit) to proceed to trf£~d ::-.incc "the People remained ready to proceed to trial even in the absence of the DN,\ test results"). 54 will be charged to the People. Sec People v. Harris, 82 N.Y.2d 409, 413 (1993) (People's failure to produce grand jury minutes within "reasonable" period of time was chargeable to the People, since "the People's inaction resulted in a delay"); "\ndcrson, 66 N.Y.2d at 542-43 (same, for delay in delivering "drugs for 1 . ") ana ys1s . That the complete OC\f E file was discoverable does not excuse the time it took to create it. Otherwise, tht: People would be permitted to unreasonably delay the commencement of trial in any case by claiming that the time it took to create a discoverable document, dt:spitc the unreasonable delay in pursuing its creation, should be excluded under the discovery exception. 1n a last-ditch attempt at excusing the delay, tht: People claim that they "cannot be faulted for any of this delay because the OC\IE has long been recognized as an independent agency that is not under the control of law 86 N.Y.2d 189, 192 (1995). Brief for ;\ppellant at 34. This claim, too, is mcritlcss. The delay in seeking i\lr. Clarke's DNA was not caused by the OCME, but by the People's own lack of due diligence. Following the November 2007 incident, the Police Department submitted the gun swabs to OCi\11 ~ for DN .\ testing, and OCi\Il ~ received them on December 1, 2007. OCi'vfE promptly analyzed the swabs and timely concluded, less than three months later on l;'ebruary 11, 2008, that there 55 was human DNA suitable for comparison("\ 134-37). The inordinate delay was not due to the OCME, but to the People's failure to exercise due diligence and inqmre. 1 For all these reasons, the "\ppellate Division c< Jrrectly concluded that the People failed to act with due diligence and that there were no exceptional circumstances. Since the intent of§ 30.30 is to discourage prosecutorial inaction and encourage the movement of cases to trial, and the People's inattention and lack of due diligence was the sole cause of this lengthy 1 (Jl-day delay, the Appellate Division correctly concluded that the time period from June 5, 2009, to November 13, 2009, is chargeable to the People. :V1oreover, because the addition of these 161 days to the periods of delay correctly conceded by the People totaled more than the required 182 days, the \ppellate Division correctly found a violation of§ 30.30 that required a dismissal of the rndictment. 1 The People also claim that, because one of theu witnesses \Vas unavailable on f\fay I 5, 2009, the time was excludablc pursuant to 30.30(3)(b). Brief for .\ppellant at 43-44. The People maintain that, because "f tjhe record docs not reflect when the detective became a\-ailablc to testify," "it can be made part of the record in the n-cnt this Court remands the case for a speedy-trial hearing." Id. at 44 n. 11. But because it is well established that the People's failure to their obligation the record that the People assume responsibility 215, they cannot 110\V recreate what they should ha,-e documented more than six years ago. 56 C. The 81-Day Delay that Resulted From the People's Repeated Adjournment Requests to Await the Outstanding Frye Decision of ~Another Judge in an Unrelated Case, W'hen the Defense Never Sought a I •'rye Hearing, is Chargeable to the People Beginning on October 29, 2009, when the People received the initial DN ,\ results from OCME but not yet the complete report, they sought a number of adjournments on the ground that they needed to wait until a l"rye decision was reached by Justice Hanophy concerning the admissibility of low copy DN"\ in another case. .\fter the complete DNA file was provided to the defense on November 13, 2009, the People continued to seek adjournments until Justice Hanophy ultimately issued his decision approximately three months later. Because the defense never even requested a~ hearing and Justice Hanophy's decision was not binding on this case, this time period of 81 days from November 13, 2009, until Febrnary 2, 2010, was also chargeable to the People. 16 The People claim that none of the prosecutor's "comments about the imminent Frve decision from another court show that thev were not readv for --------,------ " " trial until that decision was issued." Brief for Appellant at 36. This is simply untrue. The record demonstrates that the prosecutor repeatedly requested adjournments because Justice I--Ianophy's Frye decision in a different case was 11 ' The Appellate Division did not reach this claim, since its finding that the People failed to act \Vith due diligence in seeking DN. \ testing, in conjunction with other periods of dclav correctly co11cedcd by the IJeoplc~ rcsl11tcd i11 the l)cople exceeding the six-n1onth period in which they were required to be ready for trial (;\ 57 awaited. See;\ 91, 93 (prosecutor staring in October 2009 that all her witnesses were available and ready to testify, but "[ajt this juncture I have to wait for that decision"; prosecutor added that she would be ready to move forward in this case "[o]nce LJusticc Hanophy's decision! is made"); "\ 114 (People requested an adjournment in January 2010, referring to Justice 1-Ianophy's outstanding decision). The prosecutor was free to await persuasive authority supporting her evidentiary argument, but not at the expense of Mr. Clarke's speedy trial rights. The People further state that the prosecutor repeatedly offered two options to ;\fr. Clarke - to wait for Justice Hanophy's decision or have the court conduct its own lengthy Frye hearing. Brief for ,\ppellant at 37. But since the defense never sought a l·rye hearing 56), there was no hearing to conduct and no reason to await a~ decision in another case. It was therefore the People who chose, in the absence of a defense motion, to seek adjournments until Justice Hanophy issued his decision, and it is the People who arc chargeable with this rime period. 1\ttempting to minimize the trial prosecutor's stated position and instead blame ;\fr. Clarke for these repeated delays associated with Justice 1-Ianophy's outstanding decision, the People claim that the refusal to consent to the admission of the DN.\ evidence "made it clear that f i\fr. Clarke] might very well seek a hearing." Brief for; \ppellant at 38. The People, however, acknowledge that this 58 argument is merely speculation. Their repeated ruminations about what hearings defense counsel "might very well" have sought have no bearing whatsoever on whether the People arc chargeable with adjournments they requested. Jn any event, it is clear from the record that defense counsel's repeated objections concerned only the lengthy delays associated with all DNA-related adjournments that arose from the People's late request for i\fr. Clarke's DN ,\ testing, not that he was objecting to the admissibility of the DN \ results. .\ 44-45, 55-57, 71, 78, 82, 87, 93-94, 103-04, 109. Thus, when counsel stated that the People "should be precluded from using this" and that the low copy DN.\ was not "the standardized test"(,\ 93-94), it is clear that his argument was based upon the People's lengthy delay in seeking i\Ir. Clarke's DN.\, since he spoke about precisely that(,\ 93-94). The People also cite counsel's statement that he was not going to "consent to a DN.\ examination" (,\ 98), but it was plain that counsel had simply misspoken, since a DNA examination had already taken place months earlier. ivioreover, as Justice Griffin repeatedly acknowledged (A 109b, 114-1 because he and Justice Hanophy \Vere judges of courts of coordinate jurisdiction, he was not bound by J usticc Hanophy's determination. Sec Vanderhoef v. Silver, 112 ,\.D.3d 1174, 1176 (3d Dep't 201 (decisions of co-ordinate courts of same state arc not binding); Mountain View Coach Lmes v. Storms, 102 :\.D.2d 663, 59 665 (2d Dcp't 1984) (same); sec also :\ 56 (defense counsel's § 30.30 reply affirmation arguing that the decision would not be binding). There was therefore no reason to await Justice Hanopy's opinion. 1\ccordingly, the People's requested adjournments related to Justice Hanophy's anticipated decision arc chargeable to thcrn. 17 To claim that this 81-day period is not chargeable to them, the People note that Mr. Clarke had sought to have his own expert review the OCivIE's findings during the same time. Brief for _\ppellant at 36, 38-39, 42-43. But counsel's need for an expert to review complicated DN,\ findings was wholly unrelated to the late efforts the People made to initiate the process. ln any event, two weeks before the People finally provided the defense with the complete DN :\report on November 13, 2009, the prosecutor, on October 29, 2009, began asking for adjournments based upon Justice Hanophy's outstanding decision(;\ 90-93). "\ccordingly, the People themselves were seeking adjournments for another reason during the time period in which defense counsel had his own expert review the DN"\ findings, rendering counsel's efforts irrelevant to the People's readiness. Sec People v. Jones, 68 N.Y.2d 717, 718-19 (1986) (delays attributable to the i That \Ir. Clarke did not seek a~ hearing after Justice 1-Ianophy's decision confirms that the had no intent of ever one. Because f ustice Griffin stated on the record t11atJl1sticc l-Ianophy's ''ccYulcln't be 1-,indlng veen January 19, 2010, to February 2, 2010 (People's adjournment) (" \ l 28, 131 ). there is no need for a rcn1and to hold a ··~·""''·· tnal hearing because the record on appeal establishes that they failed to act with due diligence. 65 CONCLUSION FOR THE REASONS STATI,'.D, THE APPELLATE DIVISION'S DECISION 1\ND ORDER SHOULD BE AFFIRMED. December 31, 2015 Respectfully submitted, LYNN \XI. L. FAHEY :\ ttorney for Respondent N namdi Clarke .\ppellate Advocates 111 John Street, 9rh Floor New York, New York 10038 By: William G. Kastin Of Counsel (212) 693-0085 x240 GG COURT 01•' ,\PPE,\J ,S S'L\TE 01•' NE\Xl YORK THE PEOPLE OF THE STYI'E 01·' NE\'V' YORK,: ,\ppcllant, -agamst- NN.\J\IDI CL\RKE, Respondent. .\l·'FIRi\L \TION OF SI rn.VJCI ·~ \X!ILLL\J\1 c;. K.\STIN, an attorney duly admitted to the practice of law in this State, docs hereby affirm and show: That on December 31, 2015, three copies of the within Brief and Supplemental .\ppendix were served by hand upon Hon. Richard Brown, District .\ttorney, Queens County, 125-01 Queens Boulevard, Kew Cardens, New York 11415, .\tt: .\ppeals Bureau, .\.D,,\. Sharon Brodt, and one copy of the within Brief and Supplemental . \ppendix was served upon Mr. Nnamdi Clarke, by depositing true copies of the same in a postpaid, properly addressed wrapper, in an official depository under the exclusive care and custodv of the United States Postal Service within the State of l'-Jcw 'York. Dated: New York, New York December 31, 2015