The People, Respondent,v.Clinton Johnson, Appellant.BriefN.Y.November 14, 2016PEOPLE V JOHNSON (CLINTON) APL 2016-00142 TO BE ARGUED BY: EVAN HANNAY· ATTORNEY FOR APPELLANT TIME REQUESTED: 10 MINUTES APPELLATE DIVISION DOCKET N:mviBER: KA 12-01597 Onondaga County Indictment Number: 2011-0666-1 Onondaga County Index Number: 2011-0805 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION FOURTH JUDICIAL DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. CLINTON JOHNSON, Appellant. APPELLANT'S BRIEF EVAN HANNAY, ESQ. ATTORNEY FOR APPELLANT HISCOCK LEGAL AID SOCIETY 351 SOUTH WARREN STREET SYRACUSE, NEW YORK 132()2 (315) 422-8191 TABLE OF CONTENTS TABLE OF AUTHORITIES ................. ,, ...................................... ,.,, ..................................... ,,.,,.,,,.,,., .. , ii QUESTION PRESENTED ........................................................................ ,,, ....... ,,,., ........ ,,,,, ..... , .. ,, ........ ! PRELIMINARY STATEMENT ......... ,, .. ,., ..... , ................ ,,.,,,,.,.,., ... , ............. , ... ,.,.,.,,,, .. ,.,, .. , ...... ,, ..... , ....... 2 STATEMENT OF FACTS ............................ , ............. ,, ....... , .......... ,,,,,,,,, ........ ,, ...................................... 3 ARGUMENT.,,.,., .................. ,,., .. ,.,,., .................. , ... , ... ,., ...... , ....................... , ... ,,.,.,, .. ,,, ... ,,.,.,., ... , .... , ... 8 I. THE LOWER COURT ERRED IN DENYING MR. JOHNSON'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS WHERE THE STATE PRESENTED NO GOOD CAUSE FOR THE EXCESSIVE DELAY AND MR. JOHNSON WAS SPECIFICALLY PREJUDICED AS A RESULT OF THE EXCESSIVE DELAY .......................... 8 A. Defendants have the due process right to a speedy trial .................................... 8 B. Excessive pre-indictment delay violates due process even in the absence of specific prejudice ............................................................................. 8 C. The lower court erred in finding good cause for the 4Yz years of pre-indictment delay where the State had everything it needed to obtain an indictment in 2007 ............................................................................ 10 D. The People's negligent inaction does not constitute good cause ..................... II E. The lower court erred in finding that Mr. Johnson's defense was not impaired because ofthe State's excessive delay ....................................... 14 F. The error is preserved for appellate review and survives a guilty plea ............................................................................................................. ,, .... 15 G. Conclusion ....................................................................................................... 16 CONCLUSION ...... , ........ , ............ ,,, .. ,., .. , ..... , ... , ....... , ... , .... ,., .................. , ....... , ..... , ........ , .. ,, ................. 17 TABLE OF AUTHORITIES Cases Barker v Wingo, 407 US 514 [1972] .................................................................................. 8 Chambers v Mississippi, 410 US 284 [1973]. ................................................................... 14 Klopfer v North Carolina, 386 US 213 [1967] ............................................................... 8, 9 O'Sullivan vBoerckel, 526 US 838 [1999] ...................................................................... 16 PeoplevAllen, 13 AD3d639 [4thDept2004] ................................................................. 10 People v Ballerstein, 52 AD3d 1192 [4th Dept 2008] ...................................................... 16 People v Diaz, 277 AD2d 723 [3d Dept 2000] ................................................................. 16 People v Frederick, 53 AD3d 1088 [4th Dept 2008]. ....................................................... 16 People v Fuller, 57 NY2d 152 [1982] .............................................................................. 16 People v Gallup, 224 AD2d 838 [3d Dept 2003] ................................................. 10, II, 16 People vJohnson, 38 NY2d 271 [1975] ................................................................. 9, 10, 15 People v Lesiuk, 81 NY2d 485 [1993] .......................................................................... 9, 10 People v Lopez, 73 Mise 2d 878 [Sup Ct, NY County 1973] ........................................... 10 People v Prosser, 309 NY 353 [1955] .................................................................... 8, 10, 12 People v Sinagra, 15 Mise 3d 1146(A), 2007 Slip Op 51180[U] [Sup Ct, Kings County 2007] ................................................................................................................................. II People v Singer, 44 NY2d 241 (1978] ................................................................ 8, 9, 10, 12 People v Staley, 41 NY2d 789 [1977] ····--······-······················································· 9, 10, II People v Taranovich, 37 NY2d 442 [1975] .................................................................. 8, 15 People v Torres, 257 AD2d 772 [3d Dept 1999] .............................................................. 16 People v Wheeler, 289 AD2d 959 [4th Dept 2001] .................................................... 10, II People v Wilson, 8 NY2d 391 [1960] ................................................................................. 9 People v Winfrey, 20 NY2d 138 [1967] .............................................................. 8, 9, 10, 12 Smith v Hooey, 393 US 374 [1969] .................................................................................. 12 United States v Marion, 404 US 307 [1971]. ...................................................................... 9 Statutes Civil Rights Law§ 12 ......................................................................................................... 2 Criminal Procedure Law 30.20 ................................................................................... 2, 8, 9 Criminal Procedure Law 30.30 ........................................................................................... 9 Criminal Procedure Law 470.15 (I) ................................................................................. 16 Penal Law§ II 0 .................................................................................................................. 7 Penal Law§ 265.02 (1) ....................................................................................................... 7 Penal Law§ 265.03 (3) ....................................................................................................... 7 Constitutions NY Const, art I, § 6 ............................................................................................................ 9 US Cons! Amend VI ....................................................................................................... 2, 8 US Const Amend XIV .................................................................................................... 2, 8 11 QUESTION PRESENTED 1. Whether the lower court erred in denying Mr. Johnson's motion to dismiss on the ground that his due process right to a speedy trial was violated where the People indicted Mr. Johnson 4Yz years after the date of the alleged crime, the People presented no good cause for this excessive pre-indictment delay, and Mr. Johnson suffered specific and substantial prejudice as a result of the delay? Court Below: No. PRELIMINARY STATEMENT On June 30, 2011, over 4Y2 years after an alleged robbery of a drug dealer named Clinton Johnson (the Appellant herein) was indicted on charges of robbery, burglary and weapons possession (A.7-9). The alleged crime occurred on January 20, 2007, and Syracuse police did not even seek to interview Mr. Johnson until September 20, 2010 (January 27, 2012 speedy trial hearing [hereinafter "STHI "]at 25- 26, 57-58). Mr. Johnson was indicted nearly 10 months later, on June 30, 2011 , and arraigned after yet another two months of delay on August 30, 2011 (A.4, 7-9). Defense counsel filed a motion to dismiss on constitutional speedy trial grounds on November 27, 2011, and two days of hearings were held before the Honorable John Brunetti in Onondaga County Supreme Court on January 27, 2012 (STHl) and February 1, 2012 (hereinafter "STH2") (A.87-91). Following these hearings, defense counsel fi led a supplemental brief, dated February 10, 2012, asking the court to grant the motion to dismiss the indictment under the Sixth and Fourteenth Amendments to the United States Constitution and by statute (CPL 30.20 and Civil Rights Law § 12) (A.99-114). The lower court denied the speedy trial motion in an order dated February 23, 2012 because the court found good cause for the long delay and a lack of specific prejudice to Mr. Johnson's defense (A.l6-27). Following the denial, defense counsel filed a supplemental memorandum of law on February 29, 2012 (A.l 15-118). Mr. Johnson subsequently pled guilty to attempted criminal possession of a weapon in the second degree (later amended to third degree) on May 25, 2012 (A.4) and was sentenced on June 20, 2012 to 5 years determinate (later amended to 2 to 4 years 2 indeterminate) (A.4). Mr. Johnson filed a notice of appeal on June 26, 2012 (A.2). This Court granted Mr. Johnson poor person relief and assigned Hiscock Legal Aid Society to represent him on September 17,2012 (A.l73-174). That appeal now follows. STATEMENT OF FACTS The People allege that on January 20, 2007, and an accomplice later identified as Clinton Johnson went to the house of a drug dealer named (STHl at 7-9; STH2 at 23-24).111111 knew - as one of his "regular customers" of drugs (STHI at 9; STH2 at 24). - and his accomplice knocked on - door and forced their way inside after he answered (STHl at 9; STH2 at 24). 111111 was forced to the ground after a struggle and suffered minor injuries (A. I 0). - accomplice displayed a hand gun during the altercation (A.lO; STHl at 7). - and his accomplice took cash, marijuana, cigarettes and an X-Box tl·om the home and fled when they heard police sirens (A.l 0). - was apprehended but the accomplice climbed over a fence and got away (STH1 at 7-8; STH2 at 24). Police recovered a gun and sweatshirt near the fence and believed that these items were discarded by the accomplice (STH1 at 7-8~ STH2 at 24). - admitted his involvement in the crime to police and initially said that he only knew the accomplice as "Juice" (STHl at 8; STH2 at 24). - said robbing Ill was his idea and that a woman named Stephanie Green drove them to the scene after stopping at a KFC restaurant (A.60; STHl at 64-65). Several months later, - told police that he actually knew his accomplice better than originally admitted (A. l32; STHl. at 10-12). - said his partner in crime was a man named "Clinton" (A.132; STHl at 1 0-12; STH2 at 24 ). Detective Christopher 3 DeJoseph generated a photo array containing six photos, one of which contained a photo of Mr. Johnson and showed it to- on March 21,2007 (STH2 at 24~25; A.l67-168) . - identified Mr. Johnson fi·om the photo array (id.) . Two days later, on March 23, 2007, DeJoseph went to - workplace and showed him a six photo an·ay that also contained a photo of Mr. Johnson (id. at 25; A. 1 69-170). - picked out Mr. Johnson from the array (id.) . In September 2007, - pled guilty to robbery in the third degree and received five years of probation (A. 54; STH2 at 24 ). - agreed to cooperate with the People in regards to the prosecution of Mr. Johnson (A.SS-59). 111111 was given an appearance ticket for marijuana possession (STH2 at 24 ). The police had probable cause to arrest Mr. Johnson as of March 2007 but did nothing to advance the case for 312 years, when DeJoseph went to interview Mr. Johnson in prison on September 20, 2010 (STHI at 25-26, 46-47, 57-58). On June 30, 2011, Mr. Johnson was indicted on the basis of the identifications made by - and IIIII on March 2ls1 and March 23rd 2007. Two days of hearings were held to asce1iain why it took 4Y2 years to indict Mr. Johnson. The content of that testimony, which is the crux of this appeal, is set out below. Pre-Indictment Delay from January 20, 2007 to September 22, 2010 Detective DeJoseph, the lead detective in Mr. Johnson's case, gave only two reasons for the long delay. First, he claimed that he wanted to wait to receive the results of the DNA testing on the accomplice's ostensible discarded sweatshirt because he wanted to be "armed with as much information" as possible before he went to interview Mr. Johnson (STHl at 19-21; STH2 at 26). 4 DeJoseph submitted the sweatshirt for DNA testing in January 2007 and again in March 2007 (STHI at 19-20, 40-41; STH2 at 26). He received a letter from the state agency dated August 27, 2007, and marked as Exhibit 3 at STH I, telling him that although the sweatshirt had material from at least two contributors, it was not sufficient for entry into the state's Combined DNA Index System ("COD IS") database so it would not be possible to test the sample against a previously obtained sample from the convicted felon DNA database (see A.l71-17lb; STH1 at 21-22, 42-44). Thus DeJoseph knew in August 2007 that he would have to obtain a fresh DNA sample from Mr. Johnson if he wanted to compare it to the sweatshirt (STH1 at 42-44). He was aware that Mr. Johnson was incarcerated at that time on unrelated charges (id. at 22-24). While Mr. Johnson was released from prison on or about April I 0, 2009, he was still under parole supervision, belying DeJoseph's claims that he could not locate him (Pre-sentence Report ("PSR") at 17-18; STHI at 24-25). DeJoseph admitted that he knew Mr. Johnson was sent to the Jamesville Correctional Facility on unrelated charges on or about May 24, 2010 (STH I at 25). DeJoseph could have obtained a DNA swab from Mr. Johnson while he was incarcerated in state prison but he did not, explaining that he still believed the DNA from the sweatshirt could be entered into the CODIS database and compared against a prior sample despite the August 27, 2007 letter stating the opposite (STH1 at 21-23, 42-44). DeJoseph finally cleared up his understanding at some point in 2010 as a result of discussions with the district attorney (id. at 50-58). The second reason DeJoseph gave for waiting until September 20, 2010 to interview Mr. Johnson was that he did not believe interviewing a suspect while in prison 5 was "conducive for an interview" and he was concerned that Mr. Johnson would "invoke his right to counsel" (STHI at 22-24). For reasons unknown, DeJoseph did not interview Mr. Johnson before he was sent to prison in August 2007 (PSR at 17). DeJoseph also did not interview Mr. Johnson when he was released to the Syracuse parole office in AprjJ 2009 (PSR at 17-18; STHl at 24-25). After clearing up his mistakes regarding the DNA testing, and believing that the "statute of limitations was ticking" and that "no new information was coming to light scientif1cally," DeJoseph finally tried to interview Mr. Johnson on September 20, 2010 at the Jamesville Correctional Facility, but Mr. Johnson asserted his right to counsel and refused the interview (STHl at 42-44, 57-58; STH2 at 26-27; A.134). DeJoseph swore out a warrant on September 22, 2010 without the DNA evidence and without any statement from Mr. Johnson (STHl at 26-28; A.l0-13). DeJoseph did not investigate any other leads, suspects or otherwise develop any additional evidence after the identifications he obtained in March 2007 from- and- (STHl at 45-46). Pre-Indictment Delay from September 22, 2010 to August 30, 2011 Although DeJoseph swore out a warrant for Mr. Johnson's atTest on September 22, 2010, Mr. Johnson was not indicted until June 30, 2011 and was not an·aigned until August 30, 2011. Michael Kasmarek, the ADA, said that the year delay was primarily due to the need to gather evidence and speak to witnesses Ill and - (STH2 at 3, 5-l 0). Kasmarek also wrote a memo to his supervisors expressing concern over the long delay since the crime occurred (id. at 6). The ADA's notes (Exhibit 4 at STH2) indicate that the original assigned ADA did not know why it took so long to investigate Mr. Johnson (A.172-172a). In February 2011, Kasmarek was still trying to contact .. and 6 - and also inquire as to whether fwiher DNA testing of the recovered sweatshirt could be done (STH2 at 8). On March 14, 2011, Kasmarek asked DeJoseph for assistance in finding IIIII and- (id. at 9-11). On March 30, 2011, DeJoseph sent him an email with the contact information for IIIII and- (id. at 9-IO). The case was submitted to the grand jury in May 2011 and Mr. Johnson was indicted in June 2011, solely on the basis of the identifica6ons made by-and- in March 2007 (id. at 11 ). The People claimed that the two-month delay between the indictment and the arraignment on August 30, 2011 was due to difficulty in transporting Mr. Johnson from the prison (STHl at 32). Following arraignment, the People requested a saliva sample to conduct a DNA comparison with the sample from the sweatshirt, and the lower court granted the request over defense counsel's objections (H. 1113/2011 at 10). Ultimately, the sample from the sweater was tested and it showed two contributors but did not include or exclude Mr. Johnson (A.l39-143). The sum total of the evidence linking Mr. Johnson to the robbery oflllll appears to be the photo identifications made in March 2007. Mr. Johnson pled guilty to attempted criminal possession of a weapon in the second degree on May 25, 2012 (Penal Law §§ 110.00/265.03 (3)). The plea was later amended to attempted criminal possession of a weapon in the third degree (Penal La•v § 110/265.02 [I]). Mr. Johnson was given a 2 to 4 year indetenninate sentence (H. 1/28/2013 at 1-12; H. 4/12/2013 at 1-3). 7 POINT I THE LOWER COURT ERRED IN DENYING MR. JOHNSON'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS WHERE THE STATE PRESENTED No GOOD CAUSE FOR THE EXCESSIVE DELAY AND MR. JOHNSON WAS SPECIFICALLY PREJUDICED AS A RESULT OF THE EXCESSIVE DELAY A. DEFENDANTS HAVE THE DUE PROCESS RIGHT TO A SPEEDY TRIAL New York has long recognized that a defendant has a fundamental right to a speedy trial (see People v Prosser, 309 NY 353, 356 [1955]) and that an unreasonable delay in prosecuting a defendant constitutes a denial of due process (see People v Winfrey, 20 NY2d 138, 228 [1967]). The right to a speedy trial is guaranteed by statute in New York under CPL 30.20 and is also a fundamental right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution (Klopfer v North Carolina, 386 US 213, 223 [1967]). There is also a societal interest in providing speedy trials (Barker v Wingo, 407 US 514,519 [1972]). The only available remedy when a defendant's speedy trial rights have been violated is dismissal of the indictment (People v Taranovich, 37 NY2d 442,444 [1975]). B. EXCESSIVE PRE-INDICTMENT DELAY VIOLATES DUE PROCESS EVEN IN THE ABSENCE OF SPECIFIC PREJUDICE In People v Singer (44 NY2d 241, 253-254 [1978]), the Court of Appeals considered the effect of excessive pre-indictment delay on a defendant's due process rights in a case involving a four year delay in prosecuting a murder during the commission of a rape (id. at 244). In facts that mirror this case, the Court held that the four year delay in bringing an indictment was excessive where the People had sufficient probable cause a year after the crime and three years before the indictment (id. at 255). 8 Singer noted that New York has "never drawn a fine distinction between due process and speedy trial standards" and it has been "long held that unreasonable delay in prosecuting a defendant constitutes a denial of due process of law" (see id. at 253, quoting People v Staley, 41 NY2d 789, 791 [1977], citing NY Cons!, art 1, § 6). Excessive delay can result in a due process violation and dismissal, whether the delay comes before or after indictment (see Singer, 44 NY2d at 253, citing Winfrey, 20 NY2d at 138; People v Wilson, 8 NY2d 391 [1960]; Staley, 41 NY2d at 791). The due process right to a timely prosecution in New York is thus "broader than the right to a speedy trial guaranteed by statute" under CPL 30.20 or CPL 30.30 and broader than the federal right guaranteed by the Sixth Amendment to the United States Constitution (see Singer, 44 NY2d at 253, citing United States v Marion, 404 US 307 [1971]; Klopfer 386 US at 213). New York has a less rigid standard than federal courts in finding that an untimely prosecution violates due process, as "a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown" (id. at 253-254, citing Winfrey, 20 NY2d at 138; Staley, 41 NY2d at 791). Once a lengthy delay in prosecution has been shown, the People must establish good cause for the delay or risk dismissal of the indictment even in the absence of special prejudice (id. at 254 ). The Court of Appeals has repeatedly recognized that speedy prosecutions serve societal interests beyond the harm it may cause to a given defendant (see e.g. People v Johnson, 38 NY2d 271, 276 [1975]; Staley, 41 NY2d at 791; Singer, 44 NY2d at 254). While the lower court enunciated the above correct standard, citing People v Lesiuk (81 NY2d 485, 490 [1993]) (A.l6-27), it erred in applying the standard. For the reasons set forth below, the lower court was wrong as a matter of law in finding that the 9 People met their burden in establishing good cause for the 4Y, years of pre-indictment delay and in finding that Mr. Johnson was not specifically and substantially prejudiced by the delay. C. THE LOWER COURT ERRED IN FINDING GOOD CAUSE FOR THE 4Y, YEARS OF PRE- INDICTMENT DELAY WHERE THE STATE HAD EVERYTHING IT NEEDED TO OBTAIN AN INDICTMENT IN 2007 The People conceded that the 4Y, years of delay between when the alleged crimes occurred on January 20, 2007 and when Mr. Johnson was finally indicted on June 30, 2011 was "significant" (A.94). The People had the burden to establish good cause for the delay (see e.g. Singer, 44 NY2d at 254, citing Prosser, 309 NY at 353; Winfrey, 20 NY2d at 138; Staley, 41 NY2d at 791; see also Lesiuk, 81 NY2d at 490). Despite two days of hearings to allow the prosecution to establish good cause, that burden was not satisfied. Similar or Jesser delays have been found excessive, even for crimes like murder and rape, where the People delay prosecution long after they have all the evidence needed to obtain an indictment. Courts in New York, including this Court, have regularly reversed and dismissed when presented with such protracted and inexplicable delays (People v Wheeler, 289 AD2d 959, 959-960 [4th Dept 2001] [22 months]; Singer, 44 NY2d at 244-248 [nearly four years]; Johnson, 38 NY2d at 279-280 [IS-months]; Staley, 41 NY2d at 793 [31 months]; People v Gallup, 224 AD2d 838, 839-840 [3d Dept 2003] [4-year delay involving arson]; People v Lopez, 73 Mise 2d 878, 882-883 [Sup Ct, NY County 1973] [32-month delay involving distribution of narcotics]; People v Allen, 13 AD3d 639, 640 [4th Dept 2004] [57-month delay involving distribution of narcotics]). Here, the People had all they needed to obtain an indictment in March 2007 and they did in fact obtain an indictment in 20 II, solely upon such evidence. Ironically, the 10 long-awaited DNA turned out to be unhelpful to the prosecution, and Mr. Johnson pled guilty solely due to the identification evidence obtained over five years earlier and nearly five years after his alleged co-defendant was sentenced (A.54, 142-143; T. 4/24/2012 at 3-9). D. THE PEOPLE'S NEGLIGENT INACTION DOES NOT CONSTITUTE GOOD CAUSE The People never came close to meeting their burden of explaining why they delayed acting, as they had ample basis to arrest Mr. Johnson in 2007 but made no attempt to even interview him until September 20, 2010. DeJoseph gave only two reasons for this delay, neither persuasive. The first reason was that DeJoseph wanted to compare Mr. Johnson's DNA to a sample obtained from the sweatshirt recovered from the crime scene before going to see Mr. Johnson because he wanted to be "armed with as much information" as possible (STH1 at 19-23; STH2 at 26). That claim was contrary to both the law and facts of this case. The prosecution is entitled to a certain amount of time to investigate and develop the necessary evidence to bring an indictment. That being said, "inadvertence" or "sheer neglect or trifling" are not sufficient justifications for excessive delay (see Wheeler, 289 AD2d at 960, quoting Gallup, 244 AD2d at 840; Staley, 41 NY2d at 793). The lower court erroneously found good cause because DeJoseph's efforts to pursue additional DNA testing, albeit mistaken, were done in "good faith" (A.25). Such a holding conflates good faith with good cause. It is unequivocal that negligent inaction, no matter how well- intentioned, will not excuse excessive pre-indictment delay (see e.g. People v Sinagra, 15 Mise 3d 1146(A), 2007 Slip Op 51180(0] [Sup Ct, Kings County 2007]). 11 The State's inaction in this case demonstrated negligence and a lack of due diligence. DeJoseph acknowledged that he was informed in August 2007 that the sample from the sweatshirt was not CODIS-eligible and thus could not be compared to a previously obtained sample in the DNA database (A.171-171b; STHl at 21-23, 42-44). DeJoseph never sought to obtain a fresh DNA sample from Mr. Johnson, despite the fact that he was aware that Mr. Johnson was in state prison and a sample could have been requested at that time (STHI at 22-25, 42-44, 50-58). DeJoseph chose not to pursue this option that was readily available to him. Given the letter he received in 2007, DeJoseph was clearly mistaken in his belief that the sweatshirt could be compared to a previous sample, and he gave no reasonable rationale for waiting more than three years to clear this up or for failing to discuss the DNA with the district attorney during that time (id. at 43-44). More importantly, DNA was absolutely unnecessary to obtain an indictment, as shown by the facts in this case. DeJoseph's second proffered reason for waiting until September 20, 2010 to interview Mr. Johnson was that he did not want to interview him while in prison because it was not "conducive to an interview," and he was concerned that Mr. Johnson would assert his right to counsel (id. at 22-24). The fact that a suspect is incarcerated on other charges has been flatly rejected as a reason to delay indictment (see e.g. Singer, 44 NY2d at 254, citing Prosser, 309 NY at 360; Winfrey, 20 NY2d at 141-44; Smith v Hooey, 393 US 374, 377 [1969]). Even out-of-state imprisonment has been rejected as an excuse for delaying prosecution (Winfrey, 20 NY2d at 141-44). In fact, imprisonment weighs against the prosecution because a prisoner is especially unable to gather evidence necessary to put on an effective defense (see Singer, 44 NY2d at 254). 12 Even if the desire not to interview a suspect in jail were valid as a matter of law, DeJoseph's claim was belied by the fact that he was aware that Mr. Johnson was released to parole (and thus presumably readily accessible) in April 2009, but he did not even attempt to interview him (PSR at 17-18; STHl at 22-25). In addition, DeJoseph had all the evidence he needed to make an arrest in March 2007 and could have interviewed Mr. Johnson before he was incarcerated in August 2007 (PSR at 18). Ultimately, DeJoseph's prison interview of Mr. Johnson in 20 I 0 belied this claim that prisons were not "conducive" to a proper interview (STHl at 42-44; 57-58; STH2 at 26-27). In addition to that three year period of delay, the People also have the burden of exp]aining why, after DeJoseph swore out a warrant on September 22, 2010, it took until June 30, 2011 to indict Mr. Johnson. ADA Kasmarek testified that be was attempting without success to track down Ill and- to testify before the grand jury (STH2 at 5-11). But, Kasmarek inexplicably waited until March 14,2012 to reach out to DeJoseph to ask for contact information for - and Ill (id. at I 0-11 ). Two weeks later, on March 30, 2012, DeJoseph emailed him the contact information (id.). Whether due to "inadvertence" or "sheer negligence," it is clear that even after a warrant was finally issued for his arrest, Mr. Johnson's prosecution was not a priority. No additional ]eads, suspects or evidence were obtained or developed after the March 2007 identifications (STH 1 at 45-46; STH2 at 24-25). - had been sentenced by 2007 (A.54).- agreed to cooperate as part of his plea allocution, and he had identified Mr. Johnson as his accomplice in March 2007 (A.55-59, 132, 167-170). All of the evidence that Mr. Jotmson was thus indicted on was in the Peop]e's possession in March 2007. There was simply no justification for waiting more than 3Y2 years after the 13 crime to even interview Mr. Johnson and proceed with prosecution and then aJmost another year to arraign him. Appellant respectfully submits that the lower court erred in finding good cause for the four and half years of delay where all of the evidence needed for an indictment was obtained in March 2007, and the State negligently failed to pursue Mr. Johnson's prosecution. E. THE LOWER COURT ERRED IN FINDING THAT MR. JOHNSON 'S DEFENSE WAS NOT IMPAIRED BECAUSE OF THE STATE's EXCESSIVE DELAY Although a defendant does not have to prove specific prejudice if the prosecution cannot carry its burden of establishing good cause for excessive delay, there was in fact specific and significant prejudice to Mr. Johnson's ability to mount a defense. As pointed out at the speedy trial hearing and in defense counsel's motion to dismiss, the statements taken by police from - indicate that he stopped at a KFC before going to rob - and he was driven to - house by a woman named Stephanie Green (A.60·61; STHl at 64-65). Neither the police nor the assigned prosecutors made any effort to obtain the surveillance tapes from the KFC or reach out to Ms. Green (STHl at 64-65; STH2 at 15-16). Because Mr. Johnson was not even put on notice that he was a target of investigation in this matter until September 2010, he was completely deprived of the opportunity to obtain these crucial pieces of evidence or to prepare a defense (see Chambers v Mississippi, 410 US 284,294 [1973]). The claim of prejudice here was not a "routine" argument based on fading memories. When the entire defense rests on the identity of- accomplice in the robbery on the night of January 20, 2007, it is hard to imagine what could be more important to discerning the truth than speaking to the 14 woman who drove them to the house and looking at the K.FC tapes to see who- was with immediately prior to the crime. In Johnson (38 NY2d at 272), the Court of Appeals dismissed a conviction for second degree manslaughter following an 18-month delay in prosecution. The Court fo~nd sufficient prejudice where, as here, an important witness moved during the prosecution's delays and could not subsequently be located (id.) . The lower court rejected Mr. Johnson's claim of prejudice because the fact that "potential alibi witnesses could not remember where they were four and one-half years ago could be equally assertable where there is a one-year delay" (A.25). Such holding was incorrect factually and as a matter of law and policy, and directly contradicts New York's speedy trial jurisprudence, which assumes the exact opposite proposition-that is, that prejudice increases with the passage of time (see e.g Taranovich, 37 NY2d at 445). In addition, the lower court's fmding failed to address the KFC tapes, the other crucial piece of evidence raised at the speedy trial hearjng and in defense counsel's motjon to dismiss (A.ll3; STH I at 64-65). The lost tapes could have definitively identified- accomplice, but police made no effort to retain them, and Mr. Johnson was never put on notice that he was a suspect until 3 Y2 years after the crime. Appellant respectfully submits that the lower court erred in finding a lack of specific prejudice and erred in finding that the prejudice suffered would have been the same regardless of the delay in prosecution. F. THE ERROR IS PRESERVED FOR A.PPELLA TE REVIEW AND SURVIVES A GULL TY PLEA Mr. Johnson's challenge to the denial of his right to a speedy trial is preserved. Defense counsel filed a motion to dismiss on constitutional speedy trial grounds on 15 November 27, 2011 (A.87-91). The lower court held two days of hearings on the speedy trial issue, and defense counsel filed a supplemental brief in support of the motion dismiss on February 10, 2012 (A.99-114). The court denied the motion to dismiss by order dated February 23, 2012 (A.16-27). Following the denial, defense counsel filed a supplemental memorandum of law on February 29, 2012 (A.ll5-118). In the event that this Court deems the error unpreserved, Appellant asks that it be reviewed as a matter of discretion and in the interest of justice (see People v Frederick, 53 AD 3d I 088 [4th Dept 2008]; People v Ballerstein, 52 AD3d 1192 [4th Dept 2008]; CPL 470.15 [I]). The error presents a federal question as well, as it deprived Mr. Johnson of his Constitutional due process right to a speedy trial (see O'Sullivan v Boerckel, 526 US 838 [1999]). The error survives Mr. Johnson's guilty plea because claims of deprivation of due process as a result of lengthy pre-indictment delay, based on the denial of rights under the New York and United States Constitutions, cannot be extinguished by a guilty plea (see Gallup, 224 AD2d at 839; see also People v Fuller, 57 NY2d 152, 159, n 7 [1982]; People v Torres, 257 AD2d 772, 773 [3d Dept 1999], lv denied 93 NY2d 903 [1999]; People v Diaz, 277 AD2d 723, 724 [3d Dept 2000]). G. CONCLUSION The lower court erred as a matter of law in finding good cause to excuse the 4Y, years of delay in this case where the People had all the evidence they needed to obtain an indictment by March 2007, and the delays in prosecution were due to the State's negligent inaction. The lower court also erred in finding that the excessive delays did not prejudice Mr. Johnson given that he lost access to crucial evidence during the pendency of the delay. 16 CONCLUSION For the reasons set out in Point I, Appellant's due process right to a speedy trial as guaranteed by the New York and United States Constitutions was violated by the excessive delay in prosecuting the charges brought against him under Indictment No. 2011-0666-1, mandating reversal of his conviction. DATED: March 16,2015 17 Respectfully submitted, EVAN HANNAY, ESQ. STAFF ATTORNEY HISCOCK LEGAL AID SOCIETY ATTORNEY FOR APPELLANT 351 SOUTH WARREN STREET SYRACUSE, NEW YORK 13202