The People, Appellant,v.Nnamdi Clarke, Respondent.BriefN.Y.September 6, 2016To be argued by SHARON Y. BRODT (TIME REQUESTED: 20 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, against NNAMDI CLARKE, Defendant-Respondent. W444444444444444444444444444444444444444444444444444 BRIEF FOR APPELLANT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Appellant ROBERT J. MASTERS JOHN M. CASTELLANO SHARON Y. BRODT Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5878 WILLIAM KASTIN, ESQ. APPELLATE ADVOCATES 111 JOHN STREET, 9 FLOORTH NEW YORK, NY 10038 OCTOBER 21, 2015 Queens County Indictment Number 1954/2008 APL-2015-00076 TABLE OF CONTENTS Page No TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT PURSUANT TO RULE 5531 CPLR. . . . . . . . . . . . . . . . . . . . . . . . v PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE ISSUE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT THE PEOPLE DID NOT EXCEED THEIR SPEEDY- TRIAL TIME, AS THE PERIOD DURING WHICH A PREVIOUSLY UNAVAILABLE SCIENTIFIC PROCEDURE WAS USED TO COMPARE DEFENDANT’S DNA AGAINST DNA FOUND ON THE GUN HE WAS CHARGED WITH POSSESSING WAS EXCLUDABLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The Relevant Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 B. The Time during Which the Defendant’s DNA Was Being Compared to the DNA Recovered from the Gun Was Excludable under the Exceptional Circumstances Exclusion in Section 30.30(4)(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 C. The People Were Not Chargeable with the Time after They Turned Over the Final DNA Report. . . . . . . . . . . . . . . . . . . . . . . . . . 35 D. The People’s Statement of Readiness Was Not Illusory. . . . . . . . . . 44 E. The Four other Periods before May 15, 2009. . . . . . . . . . . . . . . . . . 51 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 TABLE OF AUTHORITIES Page No. Cases For the People Theaters of NY, Inc. v. City of New York, 6 N.Y.3d 63 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Frye v. United States, 293 F. 1013 (C.A.D.C. 1923). . . . . . . . . . . . . . . . . . . passim Marks v. United States, 430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Matter of Lahey, 71 N.Y.2d 135 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Allard, 113 A.D.3d 624 (2d Dept. 2014). . . . . . . . . . . . . . . . . . . . 55n.15 People v. Anderson, 66 N.Y.2d 529 (1985). . . . . . . . . . . . . . . . . . . . . . . . 42, 44, 45 People v. Babbs, 232 A.D.2d 496 (2d Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Bargerstock, 192 A.D.2d 1058 (4 Dept. 1993). . . . . . . . . . . . . . . . . . . 26th People v. Carter, 91 N.Y.2d 795 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 48 People v. Clarke, 122 A.D.3d 765 (2d Dept. 2014). . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Clarke, 25 N.Y.3d 950 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Cortes, 80 N.Y.2d 201 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45 People v. David Santana, Case No. 2013QN009060 (Crim. Ct. Queens Co. Jul. 22, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 People v. Ellison, 28 Misc.3d 1223(A) (Sup. Ct. N.Y. Co. 2010) .. . . . . . . . . . . . 33 People v. Freycinet, 11 N.Y.3d 38 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Fulmer, 87 A.D.3d 1835 (4 Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . 27th People v. Galindo, 278 A.D.2d 243 (2d Dept. 2000). . . . . . . . . . . . . . . . . . . . . . . 52 People v. Garcia, 39 Misc.3d 482 (Sup. Ct. Bronx Co., February 13, 2013). . . . 41 ii People v. Jose Ocasio, Case No. 2011BX038798, slip op. at 3 (Crim. Ct. Bronx Co. Sep. 10, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 50 People v. Joseph, 2014WL7284392 (Crim. Ct. N.Y. Co. Jun. 23, 2014). . . . . . . 50 People v. Kelly, 44 Misc.3d 1211(A) (Crim. Ct. Kings Co. Jul. 7, 2014) . . . 50n.14 People v. Kopciowski, 68 N.Y.2d 615 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Lathon, 120 A.D.3d 1132 (1 Dept. 2014). . . . . . . . . . . . . . . . . . . . . . . 27st People v. LeGrand, 8 N.Y.3d 449 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. McLeod, 44 Misc.3d 505 (Crim. Ct. New York County 2014) . . . . 48, 50 People v. Megnath, 27 Misc.3d 405 (Sup. Ct. Queens Co. February 9, 2010).. . . . . . . . . . . . . . 7, 11n.2, 23n.4, 29 People v. Middleton, 54 N.Y.2d 42 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Miller, 113 A.D.3d 885 (3d Dept. 2014) . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Moore, 45 Misc.3d 1206(A) (Crim. Ct. N.Y. Co. Oct. 8, 2014). . . . . . 50 People v. Mortoza, 45 Misc.3d 658 (Crim. Ct. Queens Co. Sep. 18, 2014). . . . . 50 People v. Notholt, 242 A.D.2d 151 (1 Dept. 1997). . . . . . . . . . . . . . . . . . . . . . . . 52st People v. Ortiz, 295 A.D.2d 134 (1 Dept. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . 36st People v. Pinkney, 31 Misc.3d 1208(A) (Crim. Ct. N.Y. Co. 2011). . . . . . . . . . . 33 People v. Price, 14 N.Y.3d 61 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9 People v. Rahim, 91 A.D.3d 970 ([2d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . 5, 32 People v. Ramos, 45 Misc.3d 1219[A] (Crim. Ct. Queens Co. Nov. 5 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 50n.14 People v. Robinson, 47 A.D.3d 847 (2d Dept. 2008). . . . . . . . . . . . . . . . . . . . . 5, 27 People v. Sibblies, 22 N.Y.3d 1174 (2014).. . . . . . . . . . . . . . . . . . . . . 20, 26, 45, 47 People v. Sullivan, 44 Misc.3d 1227(A) (Crim. Ct. N.Y. Co. Sep. 8, 2014). . . . . 50 iii People v. Washington, 86 N.Y.2d 189 (1995). . . . . . . . . . . . . . . . . . . . 6, 30, 34, 42 People v. Wearen, 98 A.D.3d 535 (2d Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . 5, 42 People v. Wesley, 83 N.Y.2d 417 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 41 People v. Williams, 244 A.D.2d 587 (2d Dept. 1997). . . . . . . . . . . . . . . . . . . . 5, 27 People v. Worley, 66 N.Y.2d 523 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Wright, 50 A.D.3d 429 (1 Dept. 2008). . . . . . . . . . . . . . . . . . . 20, 26, 51st Statutes C.P.L. § 30.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim C.P.L. § 210.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 55n.15 N.Y. Const Art VI, § 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Penal Law § 110/120.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Penal Law § 120.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 Penal Law § 221.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 Penal Law § 265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 Penal Law §§ 110/125.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Penal Law §§ 110/125.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 iv COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against - : NNAMDI CLARKE, : Defendant-Respondent. : ---------------------------------------------------------------------x STATEMENT PURSUANT TO RULE 5531 CPLR 1. The Indictment Number of the case is 1954/08 (Queens County). 2. The full names of the parties are the People of the State of New York against Nnamdi Clarke. 3. This action was commenced in the Supreme Court, Queens County. 4. The action was commenced by the filing of an indictment on August 25, 2008. 5. This appeal is from a decision and order dated November 12, 2014, of the Supreme Court of the State of New York, Appellate Division, Second Department, that reversed the judgment of conviction. 6. The appendix method of appeal is being used. v COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : NNAMDI CLARKE, : Defendant-Respondent. : ---------------------------------------------------------------------x BRIEF FOR APPELLANT PRELIMINARY STATEMENT By order of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, the People appeal from a November 12, 2014, order of the Appellate Division, Second Department, which reversed a December 16, 2010, judgment of the Supreme Court, Queens County (Kohm, J). By that judgment, defendant was convicted, after a jury trial, of two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][b], [3]), Reckless Endangerment in the First Degree (Penal Law § 120.25), and Unlawful Possession of Marijuana (Penal Law §221.05). Defendant was sentenced to concurrent indeterminate terms of from twenty-one years to life on the weapon possession counts and from three and one-half to seven years on the reckless endangerment count. He was fined $100 on the marijuana possession count. Defendant is currently incarcerated pursuant to this judgment of conviction. JURISDICTIONAL STATEMENT This Court has jurisdiction over this appeal pursuant to section 450.90(1) of the Criminal Procedure Law, insofar as the Appellate Division reversed the defendant’s judgment of conviction and dismissed the indictment. Leave was granted by order of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals. QUESTION PRESENTED Whether the time during which a previously unavailable scientific procedure is performed and the testing is litigated is excludable from the statutory speedy trial time limit, where the People were not notified of the availability of the new procedure by the relevant city agency and, after being so informed, acted diligently to obtain the testing? STATEMENT OF THE ISSUE After the People had answered ready for trial in this first-degree attempted murder case, the Office of the Chief Medical Examiner informed the District Attorney’s Office for the first time that minute amounts of DNA on the handle of a gun allegedly possessed by the defendant and fired at two police officers could be tested using a new procedure, Low Copy Number DNA testing (“LCN DNA”). That procedure, unlike previous ones, required only a few human cells for the testing process, but had not at that time passed a hearing pursuant to Frye v. United States, 293 F. 1013 (C.A.D.C. 1923), which was arguably required to establish the admissibility of the evidence. Under the then-existing OCME protocols, that office would not notify law enforcement of the possibility of LCN testing unless biological material had already been matched to a profile, and here defendant’s DNA was not in any database, even though he should have provided his DNA to the state 2 pursuant to a prior conviction and had also refused to provide it at arraignment on this case. The day after learning of the new procedure and the availability of testable biological evidence in this case, the People requested an order to show cause to obtain a buccal swab from defendant. The swab was obtained, the testing was performed, and, after the OCME, an independent city agency, provided the test results and data underlying it, both parties waited for the first LCN Frye hearing to be concluded before proceeding. Only once the new procedure passed a Frye hearing did defendant waive his objection to the test results. Upon a subsequent speedy trial motion, defendant sought to charge the People with all of the time during which the procedure was conducted, the OCME provided documents, and the parties awaited the results of the first Frye hearing. Defendant argued that the People had failed to exercise due diligence and that their prior statement of readiness to proceed to trial was illusory. The People argued that the exceptions found in two separate statutory provisions, sections 30.30(3)(b) and 30.30 (4)(g)(i) – which allowed for the exclusion of time when material evidence was or became unavailable due to exceptional circumstances – covered these time periods. Because the Appellate Division had previously held that these subdivisions covered time for DNA testing, the trial court excluded the relevant time periods, but the Appellate Division found that the People had failed to exercise due diligence in obtaining the evidence. A judge of this Court granted the People leave to appeal. 3 SUMMARY OF ARGUMENT The Appellate Division improperly reversed defendant’s conviction on speedy-trial grounds and dismissed the indictment by charging the People with all of the time from their initial request for DNA testing until the OCME provided all documentation concerning the test. This time period fell within subdivisions (3)(b) and (4)(g)(i) of section 30.30 of the Criminal Procedure Law, both of which exclude time when material evidence is or becomes unavailable pursuant to an exceptional circumstance. While the Appellate Division did not disagree that the events here constituted an exceptional circumstance rendering material evidence unavailable, that court insisted that the People failed to exercise due diligence in pursing this evidence, as required by the statutory provisions. This was error. The People were not informed that this new form of DNA testing was available in this case until well into its pendency, the People were not otherwise on notice to request it, and the People acted diligently to obtain the testing and provide the results and the underlying file to defendant as expeditiously as possible. No more was required. Sections 30.30(3)(b) and 30.30(4)(g)(i) state that the People shall not be charged with delays caused by exceptional circumstances, including the “unavailability of evidence material to the People’s case, when 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 period.” This Court has recognized that it is “impossible” to predict every situation that will warrant the tolling of speedy-trial time under this exclusion. 4 People v. Price, 14 N.Y.3d 61 (2010)(where prosecutor knew that defendant could not be prosecuted based on Appellate Division decision which later was reversed, exceptional circumstances exclusion inapplicable because People allowed indictment to remain pending knowing applicable caselaw required dismissal). Nevertheless, the Appellate Division has routinely held that the time necessary to gather biological evidence – such as DNA – from a defendant, perform the necessary genetic testing, and obtain the written results of the testing are excludable from chargeable speedy trial time as exceptional circumstances pursuant to the above subdivisions of the Criminal Procedure Law, where the People exercise due diligence in obtaining the evidence. See People v. Robinson, 47 A.D.3d 847 (2d Dept. 2008); People v. Williams, 244 A.D.2d 587 (2d Dept. 1997). The purpose of the “due diligence” language in the exceptional-circumstances exclusion is to prevent prosecutorial inaction (see People v. Price, 14 N.Y.3d at 64), such as, for example, when there is a lengthy and unnecessary delay in obtaining a defendant’s DNA after the People become aware that there is crime-scene DNA in a case(see People v. Wearen, 98 A.D.3d 535, 538 [2d Dept. 2012] [where defendant was arrested based solely on computer DNA match People failed to exercise due diligence in seeking confirmatory DNA from defendant twenty months later]; People v. Rahim, 91 A.D.3d 970 [2d Dept. 2012] [no due diligence where People knew DNA was retrieved from sexual assault kit at least three months before seeking defendant’s DNA]). Here, there was no such prosecutorial inaction. According to the OCME files that were introduced into evidence at trial, the prosecutor first learned from 5 OCME that there was crime-scene DNA on May 13, 2009, apparently pursuant to the prosecutor’s query. With this information, the prosecutor swiftly prepared an Order To Show Cause the next day, on May 14th, only one day after she learned there was crime scene DNA that was suitable for comparison. Thus, in this case, unlike in Wearen and Rahim, supra, there is no question that the prosecutor exercised due diligence in obtaining defendant’s DNA once she learned that there was crime scene DNA. Nor was the delay in discovering that there was crime-scene DNA a result of prosecutorial inaction, because it resulted from two primary factors that were beyond the People’s control: (1) OCME’s protocol that existed at the time for that independent agency to notify the prosecutor that crime-scene DNA existed in the first place, and (2) the state of LCN DNA testing at the time and its use as trial evidence. First, the OCME has long been regarded as non-law enforcement agency over which the People have no control and, therefore, are not responsible for its actions or inaction. See People v. Washington, 86 N.Y.2d 189, 192-93 (1995)(OCME documents not under People’s control for Rosario purposes because OCME independent agency not subject to control of law enforcement); see also People v. Freycinet, 11 N.Y.3d 38 (2008)(autopsy report created by OCME inherently non- accusatory in nature for Crawford purposes because OCME independent non-law enforcement agency). And, at the time, OCME’s protocol for notifying the People or the case detective that there was crime-scene DNA was triggered only when a defendant’s or suspect’s DNA matched the crime-scene DNA. Here, however, when 6 defendant was arrested, he refused to provide a buccal swab, which, according to his RAP sheet, was requested because he apparently owed DNA to the databank on an unrelated conviction. Therefore, there was none of defendant’s DNA in any computer database to generate a match, and thus, because of its own protocol, for which the People are not held responsible, OCME did not notify the People that crime-scene DNA existed in this case. And the prosecutor cannot be charged with failing to ascertain earlier than May 2009 that there was crime-scene DNA because the DNA that was used in this case was not the traditional well-known sort of DNA testing on bodily fluids, which a seasoned prosecutor would have known to look for when preparing her case. Instead, LCN DNA was, at the time, a very newly implemented high-sensitivity testing technique that was then and still is, for the most part, unique to the OCME and that, while defendant’s case was pending, was at an even newer stage in courtroom use. In fact, the first citywide Frye hearing regarding the technique started one year after defendant was arrested on this case. See People v. Megnath, 27 Misc.3d 405 (Sup. Ct. Queens Co. February 9, 2010)(Hanophy, J.) LCN DNA testing allows the OCME to obtain DNA profiles from small amounts of DNA in skin cells recovered from touched surfaces such as, in this case, a gun. Because the testing in this case involved skin cells and not traditional forms of testing media, such as body fluids, even an experienced prosecutor would not have known to look for biological evidence on, for example, the handle of a gun. 7 In this case, unlike in cases that involve traditional forms of DNA testing, the prosecutor was wholly dependent on the OCME and its protocol to ascertain that crime-scene DNA existed in the first place. But the Appellate Division’s holding that the delay in securing defendant’s DNA was chargeable to the People because they failed to exercise due diligence penalizes the People for failing to ascertain whether crime-scene DNA existed, even though they lacked the knowledge necessary to make the relevant inquiry because of the OCME protocol and the infancy of LCN DNA use in court. Of course, with the increasing use of LCN DNA testing, primarily in gun cases, and as evidence in court, there now exists a general awareness among prosecutors that DNA can indeed be retrieved from skin cells. In addition, OCME protocols have changed since this case was pending. But, given the time at which and the unique circumstances under which this case was pending – the OCME protocol and the infancy of LCN DNA as courtroom evidence – the Appellate Division’s conclusion that the delay in discovering that there was crime-scene DNA was attributable to the People’s failure to exercise due diligence is wrong. It is an unduly harsh and improperly expansive application of the “due diligence” standard, because it faults the People for inaction when they are unaware of a circumstance – here, the existence of crime-scene DNA. This deviates not only from the Second Department’s own precedent in Wearen and Rahim, supra, which faulted the People for inaction in obtaining a defendant’s DNA after they had knowledge that crime-scene DNA exists, but also other cases that address the exceptional circumstances exclusion and the People’s failure to exercise 8 due diligence in that context. See People v. Price, 14 N.Y.3d at 65-66 (People chargeable with speedy-trial time for inaction where they had knowledge that Appellate Division caselaw existed that precluded prosecution); People v. Babbs, 232 A.D.2d 496, 497 (2d Dept. 1996) (People charged with delay in producing defendant at arraignment where People had knowledge before arraignment that defendant was housed in psychiatric facility). Therefore, this Court should find that, where the People have no knowledge that DNA exists because of the protocols of an independent, non-law- enforcement agency, and, where the People have no reason to believe that the DNA exists because it is DNA based upon a new technology of which prosecutors are not generally aware, the People have not failed in their due diligence if they request a defendant’s DNA for testing only after they become aware of the existence of the crime scene DNA. FACTUAL AND LEGAL BACKGROUND On November 29, 2007, while three uniformed police officers issued a routine traffic summons during a car stop, defendant walked past the officers and repeatedly looked back at them while holding his hand near his waistband. Suspicious because defendant was paying undue attention to them, the officers followed him. They cut his path off with their unmarked car, got out of the car, and ran after him. Defendant ran away, and dropped a gun as he fled. Next, he fired a gunshot behind him at the pursuing officers. After he fired, defendant dropped the second gun – that he had just fired – and kept running. He was apprehended and 9 arrested moments later, and one of the officers recovered nineteen bags of marijuana from his person. The gun was recovered from the ground where defendant had thrown it and swabbed in three places for DNA recovery. Later comparison showed that defendant’s DNA matched a profile contained in a mixture of DNA that was found on the recovered gun. Defendant was charged with two counts of Attempted Murder in the First Degree (Penal Law §§ 110/125.27[1][A][1]), two counts of Attempted Murder in the Second Degree (Penal Law §§ 110/125.25[1]), two counts of Attempted Aggravated Assault on a Police Officer (Penal Law § 110/120.11), four counts of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[1], [3]), Reckless Endangerment in the First Degree (Penal Law § 120.25), four counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1],[3]), and Unlawful Possession of Marijuana (Penal Law § 221.05). Defendant moved to suppress the guns, and, at the conclusion of the suppression hearing, on February 20, 2009, the hearing court suppressed the first gun that defendant dropped – the one that was not used to shoot at the officers. This1 ruling significantly diminished the strength of the People’s case, as it arguably prevented the People from introducing the entire sequence of events that led up to the shooting and from introducing defendant’s statement, in which defendant admitted that he had the first gun. Defendant also moved to suppress the post-arrest statement that he had made to police. That1 statement was not suppressed, but neither the People nor defendant introduced it at trial. 10 On May 13, 2009, the OCME informed the People, for the first time, that the evidence swabs from the second gun yielded DNA that was sufficient for comparison. Two days later, the People moved for an Order to Show Cause to obtain a DNA sample from defendant, and the court signed the order. On June 5, 2009, defendant consented to the swab, and, on July 14, 2009, defendant’s DNA was obtained and sent to the OCME for testing. On October 9, 2009, the People reported to defendant that his DNA was in the crime scene sample and, on November 13, 2009, the People disclosed the completed OCME DNA testing reports to defendant. The DNA that was used in this case was the then newly implemented Low Copy Number technique, a high-sensitivity type of DNA testing that, for the first time in the history of forensic genetic profiling, allowed the OCME to obtain DNA profiles from skin cells – and which was subjected to its first citywide Frye hearing that only began one year after defendant was arrested in this case.2 On March 1, 2010, defendant moved to dismiss the indictment on speedy trial grounds. In relevant part, he claimed that the People should be charged with all of the time from May 15, 2009, when the People first requested defendant’s DNA, until November 13, 2009, when they provided defendant with the entire OCME file regarding the DNA testing, on the ground that the People failed to exercise due The Frye hearing regarding LCN DNA was conducted before Justice Robert Hanophy on the case2 of People v. Hemant Megnath (Queens County Indictment Number 917/07). The Frye hearing began on November 17, 2008, and finished on October 27, 2009, with a total of nine days of testimony and eight witnesses. On February 10, 2010, the court issued a written decision holding that LCN DNA testing was not a novel science; that it, in any case, satisfied the Frye test; and that, at trial, the People could introduce evidence of the testing and results. People v. Megnath, 27 Misc.3d 405 (Sup. Ct. Queens Co. February 9, 2010)(Hanophy, J.). 11 diligence in obtaining defendant’s DNA. Defendant also argued that the time from October 7 until November 13 was separately chargeable because the delay inth th obtaining the OCME files was caused by the People’s request for defendant’s DNA, since defendant would then need an expert to review the DNA testing file in order to prepare for trial (see Court Decision at 11; A130). On April 28, 2010, the People submitted an affirmation in opposition in which they opposed defendant’s specific claim that they should be charged with all of the time required to test the DNA and the time that defendant alleged they waited for the decision on the Frye hearing. The People also provided explanations for all of the other adjournment periods, concluding that, at the time that defendant filed the speedy trial motion, they were chargeable with twenty-one days (see People’s Affirmation in Opposition at p. 8, ¶23; A53). On May 7, 2010, defendant submitted a reply affirmation, in which he disputed the People’s arguments in opposition to his claim that they should be charged with the entire time required for the DNA testing. But he disputed none of the explanations that the People provided for the other periods of time. In a written decision dated June 9, 2010, the court summarily denied defendant’s motion, holding that the People were chargeable with a total of seventy- nine days between November 29, 2007 – the date that defendant was arrested – and April 4, 2010 – the date that defendant submitted the speedy trial motion. At most, the court noted, the People could be charged a total of one hundred and sixteen days (see Court Decision at 12; A131). 12 In relevant part, the court held that the People were charged with four days between November 29 and December 3, 2007, because they failed to offer a statutory excuse for the delay and did not document their claim that defendant refused to be arraigned in that period of time (see Court’s Decision at 4-5; A123-24). Notably, defendant had not contested this time period and the People’s explanation for the delay, either in his motion to dismiss on speedy trial grounds or in his reply to the People’s affirmation in opposition. The court also charged the People with thirteen days from August 12, 2008 – the expiration date for defendant’s last waiver of section 180.80 of the Criminal Procedure Law – and August 25, 2008 – the date that the indictment and People’s first written notice of trial readiness was dated and filed (see Court’s Decision at 6; A125). The court charged the People with nine days from December 9, 2008 – the date that their response to defendant’s omnibus motion was due – until December 18, 2008 – the date that they filed their response – because the People exceeded the reasonable amount of time within which they should have answered defendant’s omnibus motion (see Court’s Decision at 8; A127). As to the delay caused by the DNA testing, the court held that the thirty- nine days from June 5, 2009 – when defense counsel consented to the collection of a DNA sample even though defendant was not produced – until July 14, 2009 – the date that defendant actually provided a DNA sample – was chargeable to the People. But the court held that none of the other time between May 15 and November 13th th 13 was chargeable. The court nevertheless held that defendant might have a colorable claim regarding the thirty-seven days between October 7 and November 13 . Butth th it held that, even if the People were charged with those thirty-seven days, the total time chargeable was one hundred and sixteen days (see Court Decision at 11; A130). Because this maximum number of chargeable days was fewer than one hundred and eighty-two days, the court denied defendant’s motion. On September 8, 2010, defendant proceeded to trial before the Honorable Justice Robert C. Kohm, of the Supreme Court, Queens County, and a jury. At the end of trial, the jury found defendant guilty of two counts of second-degree weapon possession relating to the second unsuppressed gun, first- degree reckless endangerment, and unlawful marijuana possession. It acquitted defendant of the attempted murder and attempted assault charges. On December 16, 2010, defendant was sentenced, as noted above. Defendant appealed to the Appellate Division, Second Department, raising numerous claims. As pertinent here, he contended that the court erred in denying his speedy-trial motion because all of the time after the People moved to obtain defendant’s DNA was chargeable to them, that their initial claim of readiness was illusory, and that four additional time-periods before the People sought the DNA testing were also chargeable to the People. Specifically, with respect to the speedy-trial claim, defendant argued that the lower court erred in denying his speedy-trial motion because the six-month period between May 15, 2009, the date that People submitted to the court an Order to Show 14 Cause to obtain defendant’s DNA, and November 13, 2009, the date that People disclosed to defendant the entire OCME DNA testing file, was chargeable to the People because the People failed to exercise due diligence in securing defendant’s DNA. The People argued that the lower court’s decision was correct and that there3 was no failure to exercise due diligence because there was no inaction attributable to the People, as they sought defendant’s DNA the day after they learned that crime scene DNA existed and, as the lower court held, they were entitled to continue to gather evidence until the commencement of trial, which was critical here, where the strength of the People’s case was seriously diminished after the suppression court’s ruling. The People also argued that the DNA-testing time period was properly excluded as an exceptional circumstance because it was the protocol of the OCME, an independent non-law enforcement agency not under the People’s control, that kept the People unaware of the crime scene DNA earlier and that, because the high sensitivity type of DNA testing used here to detect DNA from skin cells was very newly implemented, the prosecutor could not be charged with independently knowing that she had to find out if there was DNA on the gun that could be tested. The Appellate Division reversed, holding that the People had violated defendant’s right to a speedy trial. It concluded that the People were chargeable with the entire period from when they requested defendant’s DNA for testing to when the Defendant also contended on appeal that the People were chargeable with four additional time-3 periods before the People sought the DNA testing. The lower court either had already ruled in defendant’s favor as to these time periods or the People agreed with defendant’s contention. Either way, they did not factor into the Appellate Division’s decision to dismiss the indictment. 15 OCME issued its final report, because they had failed to exercise due diligence in obtaining defendant’s DNA for testing against the crime scene DNA. The court dismissed the indictment, and as a result, did not reach defendant’s other claims. People v. Clarke, 122 A.D.3d 765, 752 (2d Dept. 2014). A judge of this Court granted the People leave to appeal. People v. Clarke, 25 N.Y.3d 950 (2015). Because the Appellate Division improperly found that the People failed to exercise due diligence in obtaining DNA results, and thus improperly charged the People with the time between when the People sought a DNA sample from defendant and when the OCME produced its final report, the decision of the Appellate division should be reversed, the indictment reinstated, and the case remanded to the Appellate Division for consideration of defendant’s remaining claims. 16 ARGUMENT THE PEOPLE DID NOT EXCEED THEIR SPEEDY- TRIAL TIME, AS THE PERIOD DURING WHICH A PREVIOUSLY UNAVAILABLE SCIENTIFIC PROCEDURE WAS USED TO COMPARE DEFENDANT’S DNA AGAINST DNA FOUND ON THE GUN HE WAS CHARGED WITH POSSESSING WAS EXCLUDABLE. The trial court properly denied defendant’s speedy trial motion and held that the time that it took the People to conduct DNA testing was excludable as an exceptional circumstance and that the time that it took the People to provide defendant with the OCME files from that testing in order for defendant to determine whether to request a Frye hearing was also excludable. Nonetheless, the Appellate Division found that the entire period from June 5, 2009, when the People sought defendant’s DNA, to November 13, 2009, when the People provided defendant with the final OCME report, was chargeable to the People, because the People failed to exercise due diligence in seeking defendant’s DNA. But the court was wrong, because the People cannot be charged with a lack of due diligence where they were not informed of the existence of DNA by OCME, an independent agency that was operating under its own protocol, and where the type of DNA that was taken from the gun – LCN DNA – was sufficiently new that there was no way for the prosecutor to know to inquire of OCME whether such DNA had been recovered. Thus, the People neither knew nor should have known that such DNA existed, and could not be charged with the failure to seek defendant’s DNA for comparison. 17 A. The Relevant Proceedings. The People proceeded through the usual stages of the case diligently, indicting defendant by the expiration of defendant’s final 180.80 waiver, responding to defendant’s omnibus and suppression motions in a timely manner, and proceeding with the suppression hearing as and when ordered by the court – except for a three- day time period when one of the police officer witnesses was not available for the hearing as scheduled. After the hearing, in an oral decision dated February 20, 2009, that materially altered the People’s case, the hearing court granted defendant’s motion to suppress the first gun that defendant had dropped, leaving the People with only the second gun – the one that defendant had fired at the officers – to introduce at trial (February 20, 2009, Hearing: 30-31; A39-40). Before the ruling, the People had admissible evidence that showed that the officers finished writing the unrelated moving violation and began to follow defendant and that defendant ran, dropping the first gun along the way. The admissible evidence also showed that, as the chase continued, defendant turned around and fired the second gun at the officers, dropped it, and was eventually apprehended. But, with the first gun suppressed, the People lost the ability to introduce it and, arguably, the critical first portion of the narrative – which included the dropping of the first gun – into evidence. The evidence that remained admissible after the first gun was suppressed established only the part of the sequence of events that involved the second gun. Moreover, the suppression also made it difficult for the People to make effective use of defendant’s statement – that 18 he dropped the first gun while fleeing, that it discharged, and that the police recovered the second gun when they arrested defendant (see Hearing: February 20, 2009: 30; A39). While there nonetheless remained the minimal amount of evidence to establish defendant’s guilt, the case was not as strong as it was when the People could introduce the entire sequence of events and the first gun into evidence. In particular, the suppression permitted defendant to craft the defense that he, in fact, asserted – that the police made a hasty, unfounded decision to chase him, that one of the officers improperly shot at defendant, and that the officers planted the second unsuppressed gun in an attempt to cover up the improper shooting. Nevertheless, the People intended and prepared to proceed to trial with the eyewitness and other, non-DNA, evidence that they had. On March 23, 2009, this case was scheduled for trial. The prosecutor had another trial-ready case that had been adjourned until the following day, also to start trial, and that she believed might result in a plea. She asked the court to adjourn this case for the next day, too, so that, if the defendant on her other case pleaded guilty – as she anticipated – she could start trial on this case. This case was ultimately adjourned for one month on consent because of scheduling difficulties for both parties (March 23, 2009, Proceedings: 2-3; A59-60). On April 23, 2009, the People remained ready to start trial. Defendant, however, was not. He asked for a ten-day adjournment for his ballistics expert to finish reviewing the ballistics report. In fact, on that date, defendant complained that 19 his attorney was delaying trial. The court responded that the prosecutor was ready for trial and that if defendant wished to proceed to trial without his ballistic expert, against the advice of his counsel, the court would send the case to another courtroom to commence trial immediately, as the People were clearly prepared to go forward – still before they knew that there might be DNA evidence. Defendant acquiesced, and the case was adjourned, at defendant’s request, until May 5 (April 23, 2009,th Proceedings: 2-5; A62-65). On May 5 , the prosecutor was still ready to start trial, but needed a fewth more days before she could actually start. Defense counsel had just had oral surgery and, he, too, needed a few more days, until May 15 . The case was adjourned onth consent until May 15 (May 5, 2009, Proceedings: 2-3; A68-69). Despite her requestth for a few more days, the prosecutor was still clearly ready for trial and intended to go forward with trial without DNA evidence. Thus, the prosecutor’s clear willingness to start trial on March 23, 2009, April 23, 2009, and a few days after May 5 , shows that her statements of readinessth were not illusory and that she was, indeed, prepared to go forward with the evidence that she had – the officers’ testimony and ballistics evidence – before she discovered that DNA evidence might be available. See People v. Wright, 50 A.D.3d 429, 430 (1st Dept. 2008); cf. People v. Sibblies, 22 N.Y.3d 1174 (2014) (statement of readiness illusory because prosecution already knew that she intended to seek additional evidence). And, during this time, even though she had announced and was, in fact, ready to start trial with the evidence that she had, there was nothing preventing her 20 from making continuing efforts to gather more evidence to enhance her case. This is especially so in light of the fact that the suppression ruling materially altered and weakened the People’s case, as discussed above. In doing so, on May 13 , the People received a fax from the OCMEth containing a report that showed, for the first time, that DNA had been recovered from the second gun and that it was suitable for comparison (see Exhibit 18A: Fax Cover Sheet Dated May 13, 2009; A133). The next day, the People filed an Order to Cause to take a buccal swab of defendant to obtain his DNA to make that comparison. And the following day, May 15 , in court, defendant objected to the Order to Cause,th stating that he was ready for trial and arguing that there was no probable cause to support the taking of the buccal swab. Based on defendant’s opposition to the Order, the court set a motion schedule for defendant to file his affirmation in opposition and, at defendant’s request, set June 5 as the decision and next court date (May 15, 2009:th Proceedings: 1-6; A70-75). Thereafter, on June 5 , without filing an affirmation in opposition to theth Order to Show Cause, as, on May 15 , he claimed he wanted to do, defendant orallyth consented to giving a buccal swab. The prosecutor stated that detectives would take the swab within two weeks and that OCME required sixty days from when they received the swab to complete the testing. The court scheduled that case for July 14th for control purposes (June 5, 2009, Proceedings: 2-4; A77-79). On July 14, 2009, both parties stated that defendant initially refused to be swabbed, but when defense counsel arrived at the swabbing location, defendant 21 was swabbed and that the parties were, at this point, waiting for the results of the DNA testing. The People asked for September 29 for trial, as OCME required sixtyth days to complete the DNA testing, and defendant stated that he might want “to get his own [DNA] expert” (July 14, 2009, Proceedings: 2-4; A81-83). On July 28, 2009, OCME Criminalist Lauren Lieberman created a laboratory report showing that defendant’s DNA was found in some of the crime scene evidence, and on September 28, 2009, an administrative reviewer reviewed the report and signed off on it (see People’s Exhibit 18B, Laboratory Report Dated July 28, 2009, p.4; A142). On September 29 , 2009, defense counsel was on trial with another caseth and asked for the case to be adjourned to October 7 (September 29, 2009,th Proceedings: 2; A85). In addition, OCME had not yet provided the People with the official results of the DNA testing – which had been reviewed by an OCME supervisor only one day earlier. Thus, defendant did not receive the reports regarding the DNA testing, and the court adjourned the case for October 7, 2009. On October 7, 2009, the People informed defendant that his DNA was present in the crime scene DNA and gave him the DNA report. Defendant asked for October 29, 2009, to review the report and decide whether he wanted to retain a DNA expert, and the prosecutor disclosed that she had issued a subpoena for and was still awaiting the computer print-out of the DNA data from the OCME in order to comply with her discovery obligations (October 7, 2009, Proceedings: 2-3; A87-88). 22 On Thursday, October 29, 2009, the prosecutor provided defendant with part of the OCME file – the offender part – and stated that she had not yet received another part of it – the evidentiary part – from OCME, a circumstance that was not within her control (October 29, 2009, Proceedings: 10; A98). In addition, she stated that, when she read the OCME report, she discovered, for the first time, that the type of DNA testing that OCME used in this case was not the standard type of DNA testing (PCR STR), but rather a high sensitivity type of DNA testing called Low Copy Number (LCN), which had, at the time, been recently implemented by the OCME and which had just been subject to an eight-month long Frye hearing in another Queens County court of coordinate jurisdiction. She also informed defendant and the court that the hearing court had not yet issued its decision. The prosecutor made clear,4 that, although she would prefer to wait for the decision on the Frye hearing, she was nonetheless, ready to begin trial “on Monday,” that “all ten of [her] witnesses were available.” The prosecutor also stated that, unless defendant consented to the admission of evidence regarding this different, newly implemented DNA technique, The Frye hearing regarding LCN DNA was conducted before Justice Robert Hanophy on the case4 of People v. Hemant Megnath (Queens County Indictment Number 917/07), who was convicted of Murder in the First Degree and related offenses on March 18, 2010, and, on May 11, 2010, was sentenced to an aggregate prison sentence of life, without parole. The Frye hearing began on November 17, 2008, and finished on October 27, 2009, with a total of nine days of testimony and eight witnesses. The People presented three witnesses on their direct case, two of whom were from overseas; the defense presented three witnesses; and the People presented two rebuttal witnesses. On February 10, 2010, the court issued a written decision holding that LCN DNA testing was not a novel science; that it, nonetheless, met the Frye test; and that, at trial, the People could introduce evidence of the testing and results. People v. Megnath, 27 Misc.3d 405 (Sup. Ct. Queens Co. February 9, 2010, Hanophy, J.). Queens County Assistant District Attorneys Roni C. Piplani and Brad Leventhal conducted the hearing, and A.D.A. Piplani authored all of the pre- and post-hearing written submissions. Defendant Megnath filed a notice of appeal on May 14, 2010, but, to date, has not perfected it. 23 she was also prepared to go forward with what precedent dictated would be another eight-month-long hearing that required witnesses to be brought in from Scotland (Proceedings: October 29, 2009, 3-4, 9; A91-92, 97). But defendant made it clear that he would not consent to the admission of evidence regarding the new type of DNA testing without a challenge. He stated that the People should be “precluded from using this” evidence and that because OCME did not use the “standard DNA test, they [the People] should be precluded from using this report, and my client [defendant] should be allowed to go to trial now” (October 29, 2009: Proceedings: 6; A94). Defendant also stated that he had a DNA expert who wanted to review the full report, which OCME had not yet given to the People. Defendant asked for November 6, 2009, for his expert to review the full file, and explicitly consented to a week of that time being charged to defendant (October 29, 2009: Proceedings: 11- 12; A99-100). On November 6, 2009, defendant asked for the case to be adjourned for one week, stating that he still had not received the complete set of reports from the OCME and that his DNA expert had to be able to review the entire file before defendant would be ready for trial (November 6, 2009, Proceedings: 2-3; A103-104). On November 13, 2009, the People had obtained and provided defendant with the rest of the OCME file. Defendant asked for an adjournment to December 10, 2009, for trial, to permit his expert to review the complete files. The prosecutor again stated that Justice Hanophy had not yet rendered his decision on the LCN DNA Frye hearing and also stated that defendant could either consent to the admission of the 24 LCN DNA evidence and forgo another Frye hearing or, on December 10 , the partiesth could start their own, probably lengthy, Frye hearing on the same subject matter. Defendant unambiguously refused to “consent to anything.” Recognizing that defendant was “not consenting,” to the admission of LCN DNA evidence, the court adjourned the case until December 10 , as defendant requested (November 13, 2009,th Proceedings: 5-6; A109b-c). On December 10 , the People announced that they were ready for trial. th Defendant was not ready and asked for two more weeks. The court adjourned the case for January 19, 2010, for trial (December 10, 2009, Proceedings: 2-3; A111-12). On January 19, 2010, the assigned prosecutor was on trial with another case, and the People asked for February 2, 2010, for trial. The prosecutor who asked for the adjournment in the court part informed the court that the Frye decision was going to be issued either that day, January 19 , or the next day (January 19, 2010,th Proceedings: 2-3; A114-15). B. The Time during Which the Defendant’s DNA Was Being Compared to the DNA Recovered from the Gun Was Excludable under the Exceptional Circumstances Exclusion in Section 30.30(4)(g). Section 30.30(4)(g)(i) of the Criminal Procedure Law provides that the People will not be charged for a delay due to “exceptional circumstances,” including the “unavailability of evidence material to the People’s case, when 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 period.” C.P.L. § 30.30(4)(g)(i). 25 A similar provision applies specifically in the post-readiness context. Under a post-readiness analysis, Section 30.30(3)(b) of the Criminal Procedure Law permits a court to deny a speedy-trial motion when the People have already answered ready and their present unreadiness is “due to some exceptional fact or circumstance, including but not limited to the sudden unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” C.P.L. § 30.30(3)(b). Even absent such an event that alters the People’s case, there is nothing in the speedy trial statute to preclude the People from “declaring their present readiness, but still gathering additional evidence to strengthen their case.” People v. Wright, 50 A.D.3d 429, 430 (1 Dept. 2008)(court properly denied speedy trial motion where People answeredst ready before they possessed forensic evidence and medical records that were later introduced at trial, and statement of readiness was not illusory); cf. People v. Sibblies, 22 N.Y.3d 1835 (2014)(declaration of readiness after calendar date when People still intended to gather evidence could be illusory where the People announced not ready on next date because they had not yet received that same evidence). This is especially so where, as here, the People could have proceeded to trial with only the eyewitness testimony or other evidence in their possession before they obtained the additional evidence, “and the wisdom of doing so is irrelevant for speedy trial purposes.” People v. Wright, 50 A.D.3d at 430; see also People v. Bargerstock, 192 A.D.2d 1058 (4 Dept. 1993)(no speedy trial violation whereth 26 People announced ready within statutory period and were ready to proceed with prima facie case even though they did not have results of rape kit testing until after statutory period had expired). In this regard, post-readiness delay may be chargeable to the People only “‘when the delay is attributable to their inaction and directly implicates their ability to proceed to trial.’” People v. Fulmer, 87 A.D.3d 1835 (4th Dept. 2011) (no speedy-trial violation where People delayed three weeks in obtaining second saliva swab from defendant three weeks after they learned that first swab was erroneously destroyed when People remained ready to proceed even in absence of DNA results)(quoting People v. Carter, 91 N.Y.2d 795, 799 [1998]). Moreover, it has long been recognized that the time necessary to gather biological evidence – such as DNA – from a defendant, perform the necessary genetic testing, and obtain the written results of the testing are excludable from chargeable speedy trial time as exceptional circumstances pursuant to section 30.30(4)(g)(i). See, e.g., People v. Robinson, 47 A.D.3d 847 (2d Dept. 2008); People v. Williams, 244 A.D.2d 587 (2d Dept. 1997); see also People v. Lathon, 120 A.D.3d 1132, 1132-33 (1 Dept. 2014); People v. Miller, 113 A.D.3d 885, 888 n.1 (3d Dept. 2014) (bothst cases citing to Second Department decision in Robinson). While both exceptional circumstance sections (C.P.L. §§ 30.30[3][b] and [4][g][i]) require due diligence, this Court has never held that due diligence requires that the People be aware of evidence that has been developed by an independent agency. Nor has this Court ever required the People to be aware of evidence that relies on a technology sufficiently new that prosecutors are unaware of and are 27 therefore not on notice to look for, especially where, as here, the reports and police paperwork do not contain any of the words that might flag the existence of the evidence, such as serology, blood, saliva, or semen. Here, the record shows that the People exercised due diligence in obtaining defendant’s DNA under the circumstances of this case. First, defendant’s claim below that the People delayed eighteen months – from defendant’s arrest in November 2007 until May, 2009 – in seeking defendant’s DNA is simply not true. The OCME report showing that there was crime scene DNA that was suitable for comparison was dated February 11, 2008 (see People’s Exhibit 18A, report dated February 11, 2008; A134) – three months after defendant’s arrest. But the report did not undergo OCME technical review until November 6, 2008. And it was not until December 22, 2008, that it finally underwent OCME administrative review, and was then ready for release (see People’s Exhibit 18A, Document entitled Scheduled Analysis; A138). The report was thus first ready to be released thirteen months after defendant’s arrest. Therefore, even if the People had known to ask for DNA testing in this gun case, they could not even have discovered that there was crime-scene DNA until December 22, 2008, only four months – not the eighteen months that defendant claims – before the People sought defendant’s DNA. And it was only on May 13, 2009, that the prosecutor did first learn from OCME that there was crime-scene DNA (see Exhibit 18A: Fax cover Sheet dated May 13, 2009; A133). With this information, the prosecutor swiftly prepared an Order To Show Cause the next day, on May 14 , only one day after she learned thereth 28 was crime scene DNA that was suitable for comparison. Thus, here, the prosecutor clearly exercised due diligence in obtaining defendant’s DNA once she learned that there was crime scene DNA. And the delay in discovering that there was crime-scene DNA evidence here was not a result of the People’s failure to act. Rather it was caused by the combination of three factors, all of which were beyond the People’s control: (1) the state of LCN DNA testing at the time and its use as trial evidence, (2) the protocol that was in place at the time for OCME to notify the prosecutor of the existence of crime-scene DNA, and (3) defendant’s refusal to submit to a DNA buccal swab when he was arrested. First, when this case was pending, evidentiary use of Low Copy Number DNA was in its infancy. This case was one of the first cases in Queens County involving that type of DNA of testing. Indeed, the first Frye hearing regarding LCN DNA started one year after November 29, 2007, the date that defendant was arrested on this case. And that Frye hearing was the first of its kind not only in Queens County, but also in all of New York City. See People v. Megnath, 27 Misc. 3d at 405. Because of this, the protocol that was in place at the time for OCME to notify the case detective or district attorney’s office that LCN DNA testing had yielded DNA from crime-scene evidence was triggered only when there was actually a match between a suspect’s DNA and the crime-scene DNA, as the prosecutor explained in court on May 15 (see May 15, 2009, Proceedings: 3-4; A72-73). th According to that protocol, OCME, an independent agency that is not subject to the 29 control of law enforcement (People v. Washington, 86 N.Y.2d at 192) – only notified the prosecutor and the case detective that there was DNA recovered from crime scene evidence when it had a match to a suspect’s DNA. But it made no such notification when there was no match and where, as here, there was no suspect DNA against which to compare the crime scene DNA (see May 15, 2009, Proceedings: 3-4; A72- 73). 5 Here, as the prosecutor also explained on May 15 , defendant hadth refused to submit to a buccal swab to obtain his DNA when he was arrested on November 29, 2007. Thus, between February, 2008 – the date of the OCME report showing that there was crime-scene DNA – and December, 2008 – when that report was approved by an OCME supervisor – OCME did not have defendant’s DNA to compare against the crime-scene DNA. As such, OCME clearly had no match about which to notify the case detective or the prosecutor, according to the protocol. Thus, even though, by December 2008, the OCME report showing that there was crime scene DNA available for comparison had been reviewed by a supervisor and was presumably ready for release, OCME adhered to protocol and did not notify law enforcement about the crime-scene DNA because there was no match, as defendant had refused to submit a DNA buccal swab for a comparison. 6 That protocol has since been changed. OCME notifies the prosecution whenever there is LCN DNA5 yielding a profile recovered. This is not to say that defendant did not have the right to refuse the buccal swab. But he should not6 then be able to use that refusal to his unfair advantage in his speedy-trial claim, arguing that the People should have known that there was crime-scene DNA or that they should have, at the very least, known to ask. 30 Moreover, the People could not have submitted an Order to Cause to obtain defendant’s DNA before they knew that there was crime-scene DNA against which to compare it, as they would not have been able to make an adequate showing of probable cause with no information about crime-scene DNA recovered. And, as discussed above, OCME was not going to notify law enforcement about the crime- scene DNA unless there was a match. 7 Nor was the DNA evidence here the routine type of DNA evidence from bodily fluids – blood, saliva, semen – with which an experienced prosecutor or her supervisor arguably ought to have been familiar enough with to have discovered on her own, despite the notification protocol, that there was, indeed, crime-scene DNA evidence. As discussed above, the then-very-newly implemented LCN DNA testing is a high sensitivity type of testing. LCN DNA testing allows OCME to obtain DNA profiles from small amounts of DNA in skin cells swabbed from touched surfaces such as, in this case, a gun. Because the testing involved skin cells and not traditional forms of testing media, such as body fluids, there was no paperwork by which an experienced prosecutor would have known that there might be crime-scene DNA. And the People’s discovery of the crime scene DNA – despite the fact that the protocol for OCME to notify law enforcement about the crime scene DNA On May 15 , on the record, the prosecutor explained the following: that, when he was arrested,7 th defendant had refused to give his DNA, as his rap sheet showed; that “normally, what happens is the medical examiner’s office pulls it up when there was a name and it’s connected to my case”; that, here, the prosecutor checked back through all of her records; and that she had never received a response from OCME that there was crime-scene DNA that was “usable for testing.” Moreover, it is clear from this same record that the prosecutor had spoken to defense counsel about this off the record before the May 15 calendar call (see May 15, 2009 Proceedings: 3-4; A72-73). th 31 could not be followed because defendant refused to provide his DNA at arrest – was the result of the People’s ongoing efforts to continue gathering evidence and strengthen their case against defendant in the wake of the suppression court’s ruling that drastically changed in the landscape of their case. As discussed above, the People were entitled to continue their evidence-gathering efforts, especially in light of this change in their case, even though they had announced ready for trial and, as demonstrated above, were prepared and intended to go forward with trial. Moreover, contrary to the Appellate Division’s opinion and defendant’s claim below, this case is not like People v. Wearen, 98 A.D.3d 535 (2d Dept. 2012), and People v. Rahim, 91 A.D.3d 970 (2d Dept. 2012), where the Appellate Division found that the People did not exercise due diligence in obtaining the defendants’ DNA and, consequently, charged all of the DNA testing time to the People. In both cases, the People knew, long before they sought the defendant’s DNA for testing purposes, that there was crime-scene DNA. Specifically, in People v. Rahim, a domestic violence case that involved a sexual assault charge, the People knew that there was DNA retrieved from semen contained in a sexual assault kit at least three months before the People sought the defendant’s DNA, if not more (see Respondent’s Brief on Appeal, pp. 31, 53 [“If the court had determined that defendant was unfit to proceed to trial, then the DNA testing would have been completely unnecessary. Consequently, it was entirely reasonable for the People not to seek DNA samples from defendant prior to September 6, 2007.”]). And, in People v. Wearen, 98 A.D.3d8 Because the file in Rahim has been sealed as a result of the Appellate Division’s order dismissing8 the indictment, there is no other record evidence to show exactly when the People learned that there 32 535 (2d Dept. 2012), the defendant was arrested for burglary based solely on a computer DNA match between his DNA and the crime-scene evidence. Twenty months later, the People sought a confirmatory DNA sample from the defendant. Thus, in Wearen, the court held that the People failed to establish that they had exercised due diligence in obtaining the confirmatory sample, given that they knew, twenty months earlier, that the defendant’s DNA had been found at the crime scene. Id. at 537-38. Arguably, even these two cases place an unreasonable due-diligence burden on the People. Often, there is a match between crime-scene DNA and a defendant’s profile stored in a statewide or nationwide database. In fact, this is often the match that leads to an arrest. But if a high percentage of cases are disposed of by guilty plea – especially where there is highly probative DNA evidence – it is unfair to require the People to obtain confirmatory DNA until the parties are sure that the case is going to trial. The practical effect on OCME of retesting every DNA hit would likely be to inundate the agency and cripple it. See, e.g., People v. Pinkney, 31 Misc.3d 1208(A) (Crim. Ct. N.Y. Co. 2011)(defendants asked not to be tested until there pending motions to dismiss were decided because favorable decision would render decisions moot; could not claim lack of due diligence); cf. People v. Ellison, 28 Misc.3d 1223(A) (Sup. Ct. N.Y. Co. 2010) (People delayed seeking defendant’s DNA additional seven months from when OCME put them on notice; lack of due diligence). was crime scene DNA in that case. But it was clearly more than one or two days before they sought the defendant’s DNA exemplar, as was the case here. 33 Regardless, however, this case is highly distinguishable from the Second Department cases upon which the decision relied. In critical contrast, here, the People learned that OCME had obtained DNA from the crime-scene evidence only one day before they sought defendant’s DNA – not eighteen months, as defendant tried to portray it. And, also contrary to defendant’s claim, the delay in learning that DNA had been recovered from the crime-scene evidence was not attributable to the People and certainly not a result of the People’s failure to exercise due diligence. As discussed above, the protocol that existed at the time for the OCME to notify the People and the case detective that there was crime-scene DNA was triggered only when a defendant’s or suspect’s DNA matched the crime-scene DNA. Here, however, when defendant was arrested, he refused to provide a buccal swab for DNA comparison, and there was, therefore, no DNA of defendant’s in any computer to generate a match to the crime-scene DNA. Therefore, the protocol was not – indeed, could not have been – triggered, even after the OCME obtained the crime scene DNA profile and the report went through the final round of supervisory review at OCME and was ready for release in December of 2008. Again, the People cannot be faulted for any of this delay because the OCME has long been recognized as an independent agency that is not under the control of law enforcement (see People v. Washington, 86 N.Y.2d at 192), and because there was no obvious source of DNA such as blood, semen, or other bodily fluid that would have caused the prosecutor to suspect that there might be crime- scene DNA. Therefore, the People clearly exercised due diligence here, as the 34 prosecutor sought defendant’s DNA one day after she learned that there was crime scene DNA, and the delay in discovering that there was crime scene DNA was not attributable to the People because it was a consequence of defendant’s own actions and the protocol that governed an independent agency’s notification procedures. C. The People Were Not Chargeable with the Time after They Turned Over the Final DNA Report. Although the Appellate Division found only the time from July 5, 2009, when the People first sought defendant’s DNA, to November 13, 2009, when OCME provided its final report, to be chargeable to the People, defendant below argued that the People should have been charged with all of the time between November 13, 2009, when they provided defendant the full OCME file, and February 2, 2010, when defendant announced that he intended to file a speedy-trial motion. Defendant claimed that all of this time was chargeable to the People because the People were not ready for trial, as they were awaiting another court’s decision on a Frye hearing regarding the same type of DNA testing that was used in this case. This is simply not true, and defendant’s claims are belied by the record. Preliminarily, the People concede, as the prosecutor did in her lower- court affirmation in opposition to defendant’s speedy trial motion (see Metz Affirmation at p. 6 , ¶19; A51), and, as the lower court properly held, that the period from January 19 until February 2, 2010, fifteen days, was chargeable to the Peopleth because the assigned prosecutor – A.D.A. Metz – was on trial in a different case (see January 19, 2010, Proceedings: 2; A114). 35 But, contrary to defendant’s claim, the record clearly shows that, on November 13 , defendant asked for the adjournment until December 10 . The Peopleth th gave defendant the outstanding part of the OCME file, and, before the People said anything, defendant asked for December 10 for his own expert to review the file (seeth November 13, 2009, Proceedings: 3; A109). Thus, because defendant asked for the adjournment, the time is not chargeable to the People, regardless of the People’s readiness. People v. Kopciowski, 68 N.Y.2d 615, 617 (1986)(periods of delay requested by defendant expressly waived in calculating speedy trial time “without People having to trace lack of readiness to defendant’s actions”); see also People v. Worley, 66 N.Y.2d 523, 527-28 (1985); People v. Ortiz, 295 A.D.2d 134 (1 Dept.st 2002)(periods of delay attributable to defendant excludable regardless of People’s readiness). Nor did any of the People’s comments about the imminent Frye decision from another court show that they were not ready for trial until that decision was issued and somehow render the adjournment chargeable, contrary to defendant’s claim. From the first time, on October 29 , that the prosecutor mentioned that LCNth DNA was used in this case and that there had been a very recent Frye hearing on the subject, she clearly gave defendant a choice about the LCN DNA evidence: he could consent to the admission of the LCN DNA evidence, and the prosecution would start trial immediately. Or he could oppose its admission and undergo another lengthy, expensive, and complicated Frye hearing. The prosecutor repeatedly made it clear 36 that, whatever defendant’s choice was, she was ready to start either trial or a Frye hearing. The prosecution was offering the LCN DNA as part of its case-in-chief. The moment that defendant challenged that evidence, the delay became defendant’s. Further, in challenging the evidence, defendant had two choices: have the court hold its own Frye hearing, or rely on the finding in the already-pending hearing. And, as discussed below, not only would reliance on the other court’s hearing result in judicial economy and efficiency, but it actively saved defendant significant amounts of time, because the witnesses would not have to be recalled – or new witnesses procured – and, based on precedent, the hearing would be lengthy. 9 Nor did any of the individual statements by the prosecutor shift the responsibility for the overall delay back to the People. For example, on October 29th, when the prosecutor gave defendant part of the DNA file, she announced that LCN DNA had been used in this case, and that there had already been a long Frye hearing about LCN DNA, and that Justice Hanophy’s decision was forthcoming. Although the prosecutor stated that she had to “wait” for that decision, she also made clear that she had “all ten of her witnesses” was “ready to try this case in the next two weeks.” But defendant made it quite clear that he was not going to “consent to a DNA examination” and twice stated that the People should not be able to use the DNA report because OCME did not use “the standardized DNA test.” (October 29, 2009, In fact, the next Frye hearing regarding LCN DNA – and another scientific technique called the9 Forensic Statistical Tool, OCME’s software that calculates likelihood ratios in complex DNA mixtures – was, indeed, lengthy. It began in Kings County in the cases of People v. Andrew Peaks, Kings County Indictment Number 7689/2010, and People v. Joaquin Collins, Kings County Indictment Number 8077/2010, on December 12, 2012, and concluded just over one year later, in January 2014. 37 Proceedings: 5-6, 10). This colloquy made it quite clear that defendant was not going to consent to the admission of the DNA evidence because it was not based on the standard type of DNA testing and that he might, very well, seek a Frye hearing. The court stated that the People were asking for more time to wait for Justice Hanophy’s decision on the Frye hearing, and the prosecutor made it clear that her request to wait for that decision was not because she was not ready to start trial but, rather, to avoid doing another lengthy and complicated Frye hearing – for which, based on defendant’s position, he clearly was going to ask. Indeed, she unequivocally stated, “I’m willing to try the case on Monday,” and the court replied, “Let’s do that.” Pressing the issue, the court asked the parties, “Do you want to do that?” And, recognizing the potential magnitude of the undertaking, the prosecutor asked, “We’re going to start a Frye hearing and do that for eight months?” The court stated, “Maybe yes. Maybe not,” leaving the decision up to defendant, who, as the party against whom the arguably new scientific evidence was to be admitted, could have demanded that the People conduct a Frye hearing. See Frye v. United States, 293 F. 1013 (C.A.D.C. 1923). As discussed above, defendant’s refusal to consent to admission of the LCN DNA evidence made it clear that he might very well seek a Frye hearing. But, on that date – as on every other date that the parties discussed the impending Frye decision – the entire colloquy about the Frye hearing had no bearing on the chargeable time for the adjournment from October 29 until November 6 , asth th defendant explicitly consented to the adjournment because OCME still had not given 38 the People its full file and defendant wanted an adjournment to have his DNA expert review the OCME files (October 29, 2009, Proceedings: 13; A101). The next date that the parties discussed the Frye decision was November 13 , when the People gave defendant all of the outstanding OCME files. Onth November 13 , defendant again clearly stated his position on the DNA evidence: heth was “not going to consent to anything” (see November 13, 2009, Proceedings: 4; A- 109a). Nor could he. He had just received the entire OCME file that contained reports of DNA testing based on what the prosecutor had explained was a newly implemented type of DNA test that had just been subject to an eight-month long Frye hearing with multiple expert witnesses. And defense counsel had yet to have his expert review the OCME file. Indeed, he requested the adjournment until December 10 for the very purpose of having his DNA expert review the file. Had defenseth counsel – an experienced criminal felony trial attorney – consented to admission of the DNA evidence under these circumstances, defendant would most certainly have had a colorable claim of ineffectiveness. Neither of the two following adjournments supports defendant’s claim that the People were “waiting” for the Frye decision before starting trial. On December 10 , the People unambiguously announced ready for trial and made noth mention of the other Frye hearing or decision. The case was adjourned until January 19 at defendant’s request (December 10 Proceedings: 2-3; A111-12). On Januaryth, th 19 , as discussed above, the assigned prosecutor asked for February 2 because sheth nd 39 was on trial with another case, not because the Frye decision had not been issued yet. And the fact that, on February 2 , the calendar call prosecutor informed the court thatnd the Frye decision was going to be issued either that very day or the next day does not mean that ADA Metz was unready prior to the decision, but rather that the People were simply updating the court on the status of the decision, as relevant to all of the prior discussions. Thus, because the record does not support defendant’s claim that the all of the time from November 13 until February 2 should have been charged to theth nd People because they were waiting for Justice Hanophy issued the Frye decision before they could be ready for trial, the lower court properly rejected this part of defendant’s argument. Furthermore, although the pending Frye decision was not binding on the trial court here, as a decision of an appellate court would be, it was certainly evidence of general acceptability – or the lack thereof – that the trial court could rely on in deciding a defense Frye motion – in favor of either party, without holding another lengthy and complicated hearing that would surely, and possibly unnecessarily, drain judicial, defendant’s, and the People’s resources. The admissibility of expert testimony in New York based upon the use of new or novel scientific techniques or theories is governed by the rule set forth in Frye vs. United States, 293 F. 1013, supra. Frye requires the proponent of the testimony to establish that it is relevant to the case, on a topic that is beyond the ken of the average juror, is offered by a qualified expert in the field, and is based on principles that are generally accepted in 40 the relevant scientific community. Id. General acceptance can be demonstrated, inter alia, through court cases from the same or other jurisdictions. See People v. Wesley, 83 N.Y.2d 417, 437 (1994). Thus, even where a court determines that a scientific technique is novel and, thus, subject to the Frye test, it “need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony.” See People v. LeGrand, 8 N.Y.3d 449, 457-458 (2007); People v. Wesley, 83 N.Y.2d at 436; People v. Middleton, 54 N.Y.2d 42 (1981). And a court may summarily deny a motion for a Frye hearing and conclude that a particular scientific procedure is generally accepted based on general acceptance as shown through judicial opinions. See Matter of Lahey, 71 N.Y.2d 135 (1987); see also, e.g., People v. Garcia, 39 Misc.3d 482 (Sup. Ct. Bronx Co., February 13, 2013)(Icovetta, J.)(holding, in relevant part, that FST was not novel and was generally accepted based, inter alia, on other judicial opinions rendering same holding). Indeed, the fact that, after the decision was issued in the Megnath case holding that LCN DNA was not novel and passed the Frye test, defendant did not move for another Frye hearing or to preclude the DNA evidence here at all – underscores this very point. Finally, reliance on the already-conducted hearing actually cost defendant less time than a new hearing would have. As noted above, a new hearing would have required the parties to recall or procure new expert witnesses to make the required showing and schedule the testimony of those witnesses in accordance with 41 their busy schedules – a period that precedent (and a later Frye hearing) showed might very well be in the area of eight months or more.10 Furthermore, the time from October 7 , when the prosecutor firstth notified defendant that there was a DNA match, until November 13 , when she gaveth defendant the complete OCME file, was excludable for two reasons. First, the prosecutor was still fulfilling her discovery obligations, as OCME had not yet provided the prosecutor with its entire file. See C.P.L. § 30.30(4)(a); People v Anderson, 66 N.Y.2d 529 (1985) (People’s failure to comply with discovery obligations has no bearing on readiness for trial). And the OCME files were not deemed to be within the People’s possession, as the OCME was not within the People’s control. See People v. Washington, 86 N.Y.2d at 192-93. Moreover, the record here shows that the People clearly exercised due diligence to obtain the OCME files. Indeed, defendant did not claim otherwise on appeal. This time – and all of the time between November 13 and Decemberth 10 – was also excludable because, from the time that defendant was swabbed, heth made it quite clear that he wanted his own DNA expert to review the OCME files. See C.P.L. § 30.30(4)(b)(all delays requested by defendant are excludable). For example, on July 14 , the first time the case was calendared after defendant wasth swabbed, defendant stated that he wanted adjournments because he wanted to hire his own DNA expert (July 14, 2009, Proceedings: 2; A80). On October 7 , whenth defendant received the preliminary DNA report showing that there was a match, he For the Frye hearing in Megnath, the People flew in experts from, among other places, Scotland. 10 As noted, the hearing itself went on for almost a year. 42 asked for an adjournment until October 29 to review the report and decide if heth wanted his own DNA expert (October 7, 2009, Proceedings: 2-3; A87-88). On October 29 , the People still had not received the full file from OCME, and defendantth stated that his DNA expert needed all of the DNA files in order to give an opinion, and he consented to the adjournment until November 6 (October 29, 2009,th Proceedings: 11; A99). On the next date, November 6 , the parties were stillth awaiting the rest of the OCME file, and defendant stated that he had an a DNA expert waiting to review the files, but that he could not because they were incomplete (November 6, 2009: Proceedings: 2-3; A103-04). On November 13 , the People gaveth defendant the remainder of the OCME files, and defendant asked for December 10th so that his DNA expert could review the files (November 13, 2009: Proceedings: 2-3; A108-09). Thus, the record is clear that the time between October 7 and Decemberth 10 is excludable, contrary to defendant’s claim, because the People were fulfillingth their discovery obligations and defendant wanted his own DNA expert to review the OCME file. See C.P.L. §§ 30.30(4)(a) and (b). Thus, none of the time that was required for the DNA testing, from May 15 until November 13, 2009, the date that the prosecutor informed defendant of the results of the testing, was chargeable to the People, contrary to defendant’s claim. There also exists another basis for excluding the time chargeable to the People after May 15, 2009. On that date, the prosecutor announced that the detective who had taken defendant’s statements – and who testified at trial even though the People ultimately decided not to introduce defendant’s statements – was unavailable, 43 as he had suffered chest pains that same week and yet was not medically cleared to report to duty or court (May 15, 2009, Proceedings: 3; A72). This circumstance alone clearly qualified as an exceptional circumstance, as a material witness was suddenly unavailable, making it impossible for the People to proceed to trial. C.P.L. § 30.30(3)(b). And, as such, the time between May 15 and when the detective becameth available was excludable on independent grounds.11 D. The People’s Statement of Readiness Was Not Illusory. Again, the Appellate Division held that the People had failed to exercise due diligence and could thus not invoke the exceptional circumstance exceptions to section 30.30. Nevertheless, defendant argued in the trial court that the People’s delay in seeking the DNA swab from defendant rendered their initial statement of readiness illusory. That argument, should defendant seek to raise it here, is unavailing. Generally, the law distinguishes delays occurring before the People have announced their readiness for trial from those that occur after the People have announced ready. People v. Anderson, 66 N.Y.2d 529, 534 (1985). While pre- readiness delays are excludable only if they fit within a category specifically excludable by statute, post-readiness delays are charged to the People only if they actually cause the People to become not ready for trial and are not specifically excludable by statute. People v. Cortes, 80 N.Y.2d 201, 210 (1992); People v. Anderson, 66 N.Y.2d at 534 (1985). While the People maintain the burden to ensure The record does not reflect when the detective became available to testify, but it can be made part11 of the record in the event this Court remands the case for a speedy-trial hearing. 44 that the record of proceedings is sufficiently clear for the court to determine whether the People should be charged with any delay, the announcement of ready shifts the burden to defendant to show that delays occurred under circumstances that should be charged to the People. People v. Cortes, 80 N.Y.2d at 215-216; Anderson, 66 N.Y.2d at 541; see also C.P.L. § 210.45(7). Generally, the People are not required to declare their readiness repeatedly throughout the pendency of a criminal action. People v. Cortes, 80 N.Y.2d at 214. Nor are they required “to have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid.” People v. Wright, 50 A.D.3d 429, 430 (1 Dept. 2008)(court properly denied speedy trialst motion where People answered ready before they possessed forensic evidence and medical records that were later introduced at trial, and statement of readiness was not illusory)(citations omitted). Here, the People filed a notice of readiness on August 25, 2008, the same day that they filed the indictment against defendant. Before May 15, 2009, the12 People again announced ready for trial on March 23, April 23, 2009, and May 5, 2009. Nevertheless, defendant claimed in his motion that these statements of readiness in open court were all illusory, because of the subsequent discovery that LCN DNA testing was available to be performed on biological evidence in this case. Nothing could be further from the truth. Defendant rely on the reasoning in People v. Sibblies, 22 N.Y.3d 1174 (2014), to claim that the People were not truly ready for trial before May 15 becauseth Most of the time to that point was excludable pursuant to defendant’s waiver.12 45 here, unlike in Sibblies, the prosecutor did not file her notice of readiness knowing that she still intending to seek DNA evidence. Instead, here, long after she announced ready for trial several times, the prosecutor discovered, for the first time, that there was crime-scene DNA that could be compared to defendant’s DNA. Moreover, here unlike in Sibblies, there was a change in the evidentiary posture of the case after the suppression hearing that had no retroactive effect of rendering the pre-hearing announcement of readiness illusory. In Sibblies, about a week after the People filed an off-calendar certificate of readiness and supporting deposition, the People ordered medical records of the injured officer. On the next adjourn date, the People stated they were not ready, as they were still investigating and awaiting medical records. Although the People received the medical records about a week later, they did not file a second certificate of readiness until over one month after that. The lower court denied the defendant’s speedy-trial motion, holding that the People were ready upon the filing of their first certificate of readiness because they could have proceeded to trial without the medical records. In separate, concurring opinions, the Court of Appeals reversed that decision. Initially, because there was no majority decision in that case, any reliance on the standard set forth by Chief Judge Lippman’s decision was wrong. In the “rare occurrence” where a fragmented decision does not result in a clear rule, there is no rule of law articulated, and there can be no change to prior case law. The New York State Constitution requires that “[f]ive members of the court shall 46 constitute a quorum, and the concurrence of four shall be necessary to a decision.” N.Y. Const Art VI, § 2; see also People v. Jose Ocasio, Case No. 2011BX038798, slip op. at 3 (Crim. Ct. Bronx Co. Sep. 10, 2014) (A143, 145). In Sibblies, although six judges concurred on the result – which granted the defendant’s speedy-trial motion and dismissed the indictment – no more than three judges concurred on any other part of the decision. Thus, there was no principle of law articulated in that decision, and certainly no radical departure from well established law that a prosecutor’s statement of readiness is presumed valid and that there is an affirmative burden on a defendant to demonstrate that the statement of readiness is illusory – which he cannot do merely by pointing to subsequent unreadiness by the prosecutor. Indeed, the opinion of the Court consists of two lines: “Order reversed and information dismissed. Defendant’s motion to dismiss the information under CPL 30.30 should have been granted.” People v. Sibblies, 22 N.Y.3d at 1175. This opinion is supported by two concurring opinions, neither of which is joined by more than two judges. Thus, neither of the two concurring opinions – that of Chief Judge Lippman, joined by Judges Smith and Rivera, and that of Judge Graffeo, joined by Judges Read and Pigott – created any new law, because there is no four-judge opinion that can be cited for any proposition. To the contrary, each of the concurrences arrived at the decision that the speedy-trial motion should have been granted via a different route. 47 Thus, the law remains what it has always been: a prosecutor’s statement of readiness, whether on- or off-calendar, is presumed valid, and it is a defendant’s burden to show that the statement was illusory – that it was a false representation, or that it did not reflect present readiness. People v. Carter, 91 N.Y.2d 795, 799 (1998) (there must be “proof that the readiness statement did not accurately reflect the People’s position”). Furthermore, a prosecutor’s subsequent lack of readiness does not in fact or even presumptively retroactively invalidate a previous statement of readiness. Likewise, the United States Supreme Court has held that, in cases where there is no single rationale that has the assent of at least five judges, “‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” People v. McLeod, 44 Misc.3d 505 (Crim. Ct. New York County 2014) (quoting Marks v. United States, 430 U.S. 188, 193 [1977]). This Court has recognized that that is the appropriate means of construing a fragmented decision of the United States Supreme Court. For the People Theaters of NY, Inc. v. City of New York, 6 N.Y.3d 63, 79 (2005). Thus, it would seem reasonable to assume that, in a case such as Sibblies, the Court of Appeals would apply “the same rule of construction to its own decisions.” McLeod, slip op. at 6-7. In Sibblies, the “narrowest grounds” is the holding – that in that defendant’s case, the announcement of readiness was illusory – and any legal conclusions must be based 48 upon existing principles of law – the approach embraced in Judge Graffeo’s concurring opinion, and not in the concurring opinion of Judge Lippman. Id.13 Judge Graffeo’s opinion expressly relied on and applied long-established speedy trial principles that a prosecutor’s statement of readiness is presumptively “truthful and accurate,” but may be rebutted by “proof that the readiness statement did not accurately reflect the People’s position.” If such proof is adduced, the statement of readiness will be deemed illusory. A statement after the filing of a certificate of readiness that the People are not ready does not, by itself, vitiate an off-calendar certificate of readiness. Moreover, an unexceptional reason for unreadiness subsequent to the prior certificate of readiness that does not affirmatively demonstrate that the prior certificate of readiness was inaccurate, such as the unavailability of a witness on a particular day, does not render the certificate of readiness illusory. Id. In Sibblies, Judge Graffeo’s decision noted that the prosecutor gave no explanation for the change in circumstance between the initial statement of readiness and the subsequent statement that they were not ready to proceed without medical records. Thus, if the People decided that they could not proceed without the medical records on the date they stated they were not ready, then presumptively – with no additional explanation – they could not have proceeded without them when they initially announced ready and did not have them – already knowing that they were planning to seek them – rendering the prior statement of readiness illusory. Chief Judge Lippman’s opinion is listed first – in deference to his position as Chief Judge of the13 Court – but his opinion is nonetheless not a majority opinion, and is only a concurring opinion. 49 A number of lower courts have correctly noted that the decision in Sibblies did not create new law, relying either on the lack of a quorum or on the of the lack of a clear majority. In all those cases, the courts relied on the concurring opinion of Judge Graffeo, both as the “narrowest grounds” and because her concurrence applied existing principles of section 30.30 law. See People v. Moore, 45 Misc.3d 1206(A) (Crim. Ct. N.Y. Co. Oct. 8, 2014); People v. Mortoza, 45 Misc.3d 658 (Crim. Ct. Queens Co. Sep. 18, 2014); People v. Sullivan, 44 Misc.3d 1227(A) (Crim. Ct. N.Y. Co. Sep. 8, 2014); People v. Ocasio, Case No. 2011BX038798, supra; People v. David Santana, Case No. 2013QN009060 (Crim. Ct. Queens Co. Jul. 22, 2014); People v. Joseph, 2014WL7284392 (Crim. Ct. N.Y. Co. Jun. 23, 2014); People v. McLeod, 44 Misc.3d 505, supra.14 But here, as noted above, the reason for the People’s subsequent of readiness – based on the discovery that there was DNA evidence and the desire to test defendant’s DNA against that crime-scene DNA – arose long after the People’s original statement of readiness. And, in the interim, there was a suppression decision that diminished the People’s original evidence. Thus, under the narrow holding of No Appellate Division case offers that cites to Sibblies offers any specific analysis; the Appellate14 Division cases simply hold that there was no evidence that the People’s statement of readiness was illusory. While there are a few cases that have granted speedy-trial motions, citing to Sibblies for the proposition that the People were required to justify any unreadiness subsequent to a statement of readiness by “demonstrating that an exceptional fact or circumstance arose after their declaration of readiness so as to render them not ready for trial on the next court date,” (see People v. Ramos, 45 Misc.3d 1219[A][Crim. Ct. Queens Co. Nov. 5 2014]), these cases have clearly applied the wrong standard. See also People v. Kelly, 44 Misc.3d 1211(A) (Crim. Ct. Kings Co. Jul. 7, 2014) (earlier statement of readiness “will be deemed to have been illusory absent justification for the subsequent unreadiness”). These cases simply misstate the law, the presumptions, and the burden under section 30.30. 50 the case, the subsequent unreadiness did not cast any doubt on the People’s original statement of readiness. And, even were this Court to apply the more expansive approach embraced in Judge Lippman’s decision, defendant should not prevail. Judge Lippman’s opinion concluded that, when the People file an off-calendar certificate of readiness and declare they are not ready at the next court date, the People must demonstrate that some exceptional fact or circumstance arose after the declaration to render them not ready. If the People fail to meet that burden, then they should be deemed to have been not ready when they filed the off-calendar certificate of readiness. In this case, the exceptional fact or circumstance that arose was that the People discovered, for the first time, that there was crime-scene DNA that was suitable for comparison testing. This did not negate that People were in fact ready on the prior adjourn dates. And, as discussed above, this delayed discovery of crime- scene DNA was attributable to three factors that were outside of the People’s control: the context and state of LCN DNA as an evidentiary tool, the protocol in place at the time for OCME to notify the prosecution that there was crime-scene DNA, and defendant’s initial refusal to provide a buccal swab. Thus, defendant cannot prevail even under this expansive approach. E. The Four other Periods before May 15, 2009. Below, defendant further claimed that four additional periods were chargeable to the People. Preliminarily, the calculation of chargeable time in these 51 four time periods has no effect on the lower court’s decision that the People did not exceed the speedy-trial period in this case because the time was either already included in the lower court’s calculation of chargeable time or, as in the case of three days during the hearing, when added to the total chargeable time, did not result in six months of chargeable time. Nor did the Appellate Division’s opinion rest upon these periods. First, defendant claimed that the four-day delay between November 29, and December 3, 2007 – the arrest date and the date that defendant was arraigned on the criminal complaint – was chargeable to the People, because, in their affirmation in opposition to defendant’s speedy-trial motion, the People averred that defendant had refused to be arraigned, but failed to support that statement with any statutory provision or minutes, as the lower court held (see Defendant’s Appellate Division Brief at 61; Court Decision at 5; A124; Metz Affirmation at p. 1, ¶1; A46). The lower was wrong because, even absent the minutes or statutory provision, it could have relied on the People’s explanation for the delay, as there was no factual dispute about the circumstances of this delay, and as defendant did not address it in his speedy-trial motion or his reply. Indeed, defendant’s entire speedy-trial claim focused only on the time period between when the People obtained defendant’s DNA and when defendant announced he was going to file a speedy trial motion. See People v. Galindo, 278 A.D.2d 243 (2d Dept. 2000); People v. Notholt, 242 A.D.2d 151 (1st Dept. 1997). 52 Defendant’s second claim, that the lower court correctly charged the People with the thirteen days between August 12, 2008 – the date that defendant’s waiver of his rights under section 180.80 of the Criminal Procedure Law expired – and August 25, 2008 – the date that the People filed the indictment against defendant and their notice of readiness – is correct (see Defendant’s Appellate Division Brief at 61; Court Decision at 5-6; A124-25). Defendant’s third claim, that the lower court correctly charged the People with nine days for filing their affirmation in opposition to defendant’s omnibus motion nine days after the matter was calendared for decision lacks merit (see Defendant’s Appellate Division Brief at 61). Here, at defendant’s arraignment on the indictment, the court set a motion schedule, giving defendant until October 7 to file his motion. The Peopleth had three weeks, until October 31 , to respond, and the court’s decision wasst scheduled for November 17 . But defendant did not file his motion in accordanceth with this schedule. On November 17 , a Monday, defendant stated that he “filed histh motions late on Friday,” November 14 . The People then requested two weeks to fileth their response, and the court adjourned the case to December 9 for decision. Onth December 9 , a Tuesday, the People had not yet received a copy of the defenseth motion, and asked for the end of the week to respond. The court adjourned the case for January 12, 2009, for decision. The People served their response on December 16 , the next Tuesday. The court issued a written decision on January 6, 2009,th 53 ordering a Mapp/Huntley hearing (see Court Decision [Gavrin, J.]; A4). That hearing commenced on January 12 (see Minutes of January 12, 2010: 1; A9). th The People should not be charged with any time during this period, as they filed their response to defendant’s motion within a more than reasonable amount of time under the circumstances. The People responded to defendant’s motion in seven days, much less than the two and three weeks they were originally granted to file their response after defendant failed to file his motions in a timely manner and new motion schedules were set. It was defendant’s delay in filing and then serving the motion that delayed the People’s response. Furthermore, the court’s decision and the hearings were not ultimately delayed because of the People’s failure to file a timely response. Therefore, the time was excludable under section 30.30(4)(a). Finally, defendant claimed that the prosecutor correctly conceded in her affirmation in opposition that the three days between February 17 and February 20, 2009 – when the People’s witness for the suppression hearing was unavailable – were chargeable to the People. To the contrary, the court was correct in excluding that time period, as the suppression hearing had already begun and was, at that point, an ongoing process, and the time was excludable under 30.30(4)(g). * * * In sum, the Appellate Division erred in deciding that the People had not exercised due diligence in obtaining defendant’s DNA for comparison to the crime- scene DNA. The People did not know that OCME had determined that there was usable crime-scene DNA until May 13, 2009, and then sought DNA testing 54 immediately. And the People could not have known that there was crime-scene DNA, as, under the protocols of the OCME – an independent agency – the People were not notified of the existence of the DNA because there was no computer-generated match for the DNA. Moreover, the technology that yielded the DNA was so new that the prosecutor had no reason even to suspect that usable DNA had been recovered from the skin cells on the gun. Nor were there any flags for the prosecutor, such as serology reports. Therefore, the decision of the Appellate Division granting defendant’s speedy-trial motion, reversing the conviction, and dismissing the indictment should be reversed. The case should then be remitted to the Appellate15 Division for consideration of defendant’s remaining appellate claims. In the alternative, this Court should remand the matter to the lower court for a hearing on the15 speedy-trial issues to create a more detailed record regarding the protocol that existed for OCME to inform law enforcement that there was crime scene DNA and regarding the unavailability of the detective who took defendant’s statements. Dismissal – the remedy that the Appellate Division imposed – is a drastic, unnecessary, and irreversible measure – and, of course, as the People argued above, wholly unwarranted, as the speedy-trial time here did not expire. In this case, dismissal is a particularly harsh remedy, given the fact that the proceedings here occurred in the early stages of LCN DNA evidentiary use, the protocol that governed the OCME’s notification policy at the time, the reasons that the prosecution ultimately knew to ask for DNA evidence, and defendant’s refusal to give a DNA sample when he was arrested. See C.P.L. § 210.45(6); People v. Allard, 113 A.D.3d 624, 626 (2d Dept. 2014)(case remanded to lower court for hearing on speedy-trial motion). 55 CONCLUSION For the reasons set forth above, the decision of the Appellate Division reversing defendant’s conviction and dismissing the indictment should be reversed, and the case remitted to the Appellate Division for consideration of defendant’s remaining claims. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: _________________________ Sharon Y. Brodt Assistant District Attorney (718) 286-5878 ROBERT J. MASTERS JOHN M. CASTELLANO SHARON Y. BRODT Assistant District Attorneys Of Counsel October 21, 2015 56