The People, Respondent,v.Clinton Johnson, Appellant.BriefN.Y.November 14, 2016PEOPLE V JOHNSON (CLINTON) APL 2016-00142 REQUESTEJ) TIME: 10 MINUTES To Be Argued By: JAMES P. MAXWELL, ESQ. Chief Assistant District AttQrney Onondaga County, New Vork SUPREllfE COURT OF THE STATE OF .lVEJl" YORK APPELLATE DIVISI01V- FOURTJ/ DEPA.RTl~1ENT THE PEOPI.~E OF THE STATE O:F NE\V YORK, Respondent, vs. CLINTON JOIINSON, Dejerulan.t-Appellant. Doc.kct No. KA 12-01597 Indictment No. 2011-0666-1 Index No. 2011-0805 =~=====~~=======~=~===~============================= TI:IE PEOPLE'S BR.IEF _____________ ,_ ______ ........ _... ____________________ ,.. __________ ~----------------------------------------------------....- JAA1K\' P. MAXWELL, E4;;Q. Chief Assistant District Attorney COLIN LYNCH, Criminal Law Associate WlLLIAJ.f J. FITZPATRICK,. ESQ. Onmzdaga County J)istrict Attorney Attorney for Re.'!ipondent Criminal Coul'thouse, 41h Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470 Syracuse University College of Law Extemship Program Assisttmt District Attorney OJ Counsel TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................................................ . QUESTION PRESENTED ........................................................................... 1 PRELIMINARY STATEMENT ..................................................................... 1 STATEMENT OF FACTS ......................................................................... 2 POINT I THE COURT BELOW PROPERLY DENIED DEFENDANT'S MOTION TO DISMISS ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS ............. 6 A. The extent of the delay was not unreasonable .................................. _... 8 B. The prosecution established good cause reasons for the delay. . . . . . . . . . . . . . . . . . 8 C. The charges against defendant were serious in nature. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 D. There was no extended period of pretrial incarceration ... _ ...................... 11 E. Defendant was not impaired or prejudiced by the four and a half year delay............................................................................... 12 CONCLUSION ....................................................................................... 13 TABLE OF AUTHORJITIES PAGE CASES People v Brown, 262 AD2d 419 (2nd Dept 1999) .................................................. 7 People v Corrigan, 139 AD2d 918 (4'h Dept 1988), lv denied 72 NY2d 917 (1988) ......... 7 People v Frazier, 159 AD2d 1017 (4th Dept), lv denied 76 NY2d 734 (1990), cert denied 498 US 873 (1990)..................................................................... .. 7 People v Gallup, 224 AD2d 838 (3'd Dept 1996) ................................................ 10 People v Lesiuk, 81 NY2d 485 (1993).......................................................... .... 6 People v Nazario, 85 AD 3d 577 (1st Dept 2011) ................................................ 7, 9 People v Rodriguez, 281 AD2d 375 (1 5' Dept 2001) ............................................ 7, 8 People v Singer, 44 NY2d 241 (1978)........................... .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 6 People v Staley. 41 NY2d 789 (1977) ........................................................... 6, 10 People v Taranovich, 37 NY2d 442 (1975) ......................................................... 7 People v Wheeler, 289 AD2d 959 (4tl' Dept 2011) ............................................... 10 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION-FOURTH DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. CLINTON JOHNSON, Defendant-Appellant. Docket No. KA 12-01597 Indictment No. 20U-0666-l Index No. 2011-0805 THE PEOPLE'S BRIEF QUESTION PRESENTED I. DID THE COURT BELOW PROPERLY DENY DEFENDANT'S MOTION TO DISMISS THE CLAIM THAT THE PEOPLE VIOLATED HIS DUE PROCESS RIGHT TO A SPEEDY TRIAL? The court below, after a hearing, denied defendant's motion to dismiss. PRELIMINARY STATEMENT This is an appeal from a judgment of conviction for the crime of attempted criminal possession of a weapon in the third degree following a guilty plea in Supreme Court, Onondaga County (Brunetti, Acting Justice) on May 25, 2012. On June 20, 2012 the Honorable John J. Brunetti sentenced Clinton Johnson (defendant) to five years in prison and five years 110strelease supervision. The sentence was later amended to an indeterminate term of2 to 4 years in prison. The People Ieceived a Notice of Appeal on June 26,2012. The People received two copies of defendant's brief and the Appendix ("A") on March 20, 2015. Defendant was conditionally released to parole on February 19,2015. STATEMENT OF FACTS On June 30, 2011, an Onondaga County Grand Jury returned Indictment No. 2011-0666-1 charging defendant with three counts of burglary in the first degree, two counts of robbery in the first degree, two counts of robbery in the second degree, and one count of criminal possession of a weapon in the second degree. The charges arose from an incident that occurred on January 20,2007, when defendant and entered the apartment at - A venue in Syracuse, and forcibly stole property from - with a .38 caliber revolver. On January 27, 2012 (HI.) and February 1, 2012 (H2.), the court conducted a hearing after defendant filed a motion to dismiss the indictment alleging that the four and a half years between the crime and the filing of the indictment violated his due process right to a speedy trial. On January 20, 2007, Syracuse Police Detective Christopher DeJoseph became jnvolved in a robbery investigation after he was made aware that an individual named had been taken into custody (Hl. 6). Detective DeJoseph spoke with the victim of the robbery, and learned that and an unk.nown accomplice, later identified as defendant, forced their way into- house and forcibly robbed him of $700.00 in cash, a quantity of marijuana, a quantity or narcotics, a 2 bucket of loose change, a carton of cigarettes, and an X-box gaming system (Hl . 7-9; A. 11 ). - was caught by tl1e police as he fled from the crime scene, but the accomplice eluded the police by jumping over a fence (Hl . 7 -8). Police recovered a gun and a sweatshilt near the fence, and believed that the accomplice discarded these items (H1 . 7- 8). - told Detective DeJoseph that he did not know the name of his partner in the robbery and referred to him only as "Juice» (Hl. 8). On March 21, 2007, Detective DeJoseph was contacted by Assistant District Attorney Tamara Thomson, who informed the detective that - and his attorney wished to discuss the robbery (Hl. 1 0). At the meeting, - told Detective DeJoseph that his accomplice, who he had previously identified by the nickname "Juice," was named "Clinton" (Hl. 11-12). Detective DeJoseph was able to determine tlle person to be defendant and constructed a photographic array to show to- (Hl . 12-13). - identified defendant from the photographic array as the man he had committed the January 20, 2007 robbery with (Hl. 13-15). On March 23, 2007, Detective DeJoseph met with the victim of the robbery, to show him a photographic array, in attempt to have- identify the second man who robbed him (Hl. 15-16). - identified defendant from the photographic anay as the second man who robbed him (HI . 17). After defendant had been identified by- and - Detective DeJoseph did not immediately seek to interview defendant because he was awaiting the DNA results from the sweatshirt, handgtm, and video game controller recovered after defendant fled the scene of the crime, and because at that time defendant was incarcerated for an unrelated crime (Hl. 2 1-23). Based on his 15 years of experience as a police officer, 3 Detective DeJoseph preferred to avoid interviews with an incarcerated suspect because the atmosphere of a state prison is not conducive for an interview and he was concerned that defendant would be unaware that he could invoke his right to counsel despite the fact he was incarcerated (HI . 23-24). Additionally, DeJoseph indicated that he did not immediately interview defendant after he was identified because he wanted to try to find corroborating evidence of the identifications, since both- andllll were arrested after the incident (Hl. 29-30). Defendant was released from custody on April 1 0, 2009 and Detective DeJoseph attempted to locate defendant to interview him, but was unable to do so (I-11. 25). On May 24, 2010, Detective DeJoseph learned that defendant was back in custody, this time at the Jamesville Correctional facility in Onondaga County (I-11. 25). DeJoseph spoke with defendant on September 20, 2010 and submitted a warrant application to the District Attomey' s Office on September 22, 2010 (HI. 26-28). Detective DeJoseph continued to maintain contact with the District Attorney's Office from October to December in regards to defendant's case, including putting- and- in contact with the Assistant District Attorney assigned to the case (H 1. 31-32). Detective DeJoseph indicated that he had trouble with his investigation into defendant due to the fact that the case against his accomplice, - had been sealed because of youthful offender status (HI. 33-35). Assistant District Attorney Michael Kasmarek received the case on October 1, 201 0 (H2. 5). Kasmarek expressed some concern over the fact that the crime occurred in 2007 and that he was just seeing the file for the first time in October 20 I 0 (H2. 6). Kasmarek contacted Detective DeJoseph and then went into the LEADS system to review the police reports regarding the two witnesses to gather as much information from 4 LEADS as possible on how to contact the witnesses (H2. 6-7). On November 18,2010, Kasmarek contacted the former prosecutor assigned to IIIII case, Tamara Thomson, to find out additional information about the case and learned that Thomson believed there were issues 'Nith - credibility but that she did not know why the case against defendant had not been pursued (H2. 7; A. 172). On December 29, 2010, Kasmarek spoke with his supervisor regarding defendant's case and told him about his conversation with Thomson and that she had never pursued a case against defendant beyond prosecuting the codefendant, and that he was having trouble getting in contact with the two vritnesses (H2. 8; A. 172). Kasmarek continued to fol1ow up with his investigation and attempted to locate IIIII and- on Feb mary 2, 2011 by running criminal history reports for the two witnesses (H2. 9; A. 172). Kasmarek continued to have difficulty locating the two \\ritnesses. He spoke with Detective DeJoseph on March 14, 2011, to update him on the progression ofthe case and to ask for his help in locating- and- (H2. 10; A. 172). On March 30, 2011, Kasmarek received phone numbers from Detective DeJoseph for both witnesses and attempted to contact both witness (H2. 11; A. 172). The following week Kasmarek met with- They discussed the case and how things would proceed from there (H2. 11). The case was presented to the grand jury in May 2011 (H2. 11), and the indictment was filed on June 30,2011 (A 7-8). There was a iwo month delay between the indictment and anaignment of defendant on August 30, 2011 due to difficulty in transporting defendant from state prison because of his parole violation (H 1. 32). 5 Defendant entered a guilty plea on May 25, 2012 to attempted criminal possession of a weapon in the second degree (Plea [P] at 22-25). Defendant was sentenced to a determinate term of five years imprisomnent and five years postrelease supervision (Sentencing [S] on June 20, 2012 at 7). Defendant's plea was later amended to attempted criminal possession of a weapon in the third degree, and defendant was given an indeterminate sentence of2 to 4 years (Sentencing 2 (S2] on January 28, 2013 at 12; Amended Sentencing [AS] on Aprill2, 2013 at 1-3). POINT I THE COURT BELOW PROPERLY DENIED DEFENDANT'S MOTION TO DISMISS ON CONSTITUHONAL SPEEDY TRIAL GROUNDS Defendant contends in Point I of his brief (at 8-16) that the court below erred in denying his motion to dismiss on due process speedy trial grounds because the People did not show good cause for the delay and because defendant was specifically prejudiced as a result of the delay. Defendant's claims are without merit. The Court of Appeals "has consistently held that 'unreasonable delay in prosecuting a defendant constitutes a denial of due process oflaw'" (People v Lesiuk, 81 NY2d 485,490 [1993], quoting People v Singer, 44 NY2d 241,253 (1978]; People v Staley, 41 NY2d 789,791 [1977]). When there has been a prolonged delay in prosecuting a defendant, the burden is on the prosecution to establish good cause for that delay (People v Singer, 44 NY2d at 254). However, the Court of Appeals has recognized the need of police and prosecution to investigate to discover the offender, to eliminate unfounded charges, and to gather sufficient evidence to bring the case, or related cases, to court (jgj. "A determination made in good faith to defer commencement of the 6 prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense" (id.). In assessing a due process speedy trial claim, the factors to be considered are (I) the extent of the delay, (2) the reason for the delay, (3) the nature of the underlying charge, ( 4) whether or not there has been an extended period of pretrial incarceration, and (5) whether or not there is any indication that the defense has been impaired by reason of the delay (People v Taranovich, 37 NY2d 442,445 [1975]; see also People v Brown, 262 AD2d 419,419 [2"ct Dept 1999]). In reviewing determinations of a due process claim based on pre-indictment delay, this Court has paid careful attention to whether or not the defendant was able to establish that the delay impaired the defense (see People v Corrigan, 139 AD2d 918,919 [ 4111 Dept 1988], lv denied 72 NY2d 917 [1988]). Generally, courts have determined that the police and prosecution have acted in good faith where the delay was due to efforts by the police and prosecution to obtain additional corroborating evidence and the defendant was unable to show prejudice (see~ People v Rodriguez, 281 AD2d 375 [1" Dept 2001] [finding that a 7'/z year delay in commencement ofprosecntion was caused by prosecutorial desire to gain more evidence, not to gain a tactical advantage, and that there were no grounds for dismissal because there was no showing of specific prejudice]; see also People v Nazario, 85 AD 3d 577 [1st Dept 2011] [finding that a 12 year delay in commencement of prosecution was not due to bad faith, but rather efforts to acquire substantial corroborating evidence in order to prove defendant's guilt beyond a reasonable doubt, and that there was no prejudice to the defendant]; People v Frazier, 159 7 AD2d 1017 [4th Dept 1990], lv denied 76 NY2d 734 [ 1990], celt denied 498 US 873 [1990] [finding 11-year delay permissible]). A. The extent of the delay was not unreasonable. The extent of the delay in the indictment of defendant did not infringe upon defendant's right to a speedy triaL The almost four and a half year delay in indictment was within the five year statutory period governing the commencement of felony prosecutions, and therefore, was not an unreasonable delay under the speedy-trial statute (CPL 30.10 [2] [b]). B. The prosecution established good cause reasons for tbe delay. Even if this Court were to fmd that the extent of the delay may have caused some prejudice to defendant, the prosecution still had a good cause reason for the delay in the indictment. Contrary to defendant's claim (at 10-13 of defendant's brief) the court below properly found that the prosecution established good cause for the pre-indictment delay. The court found that the prosecution acted in good faith despite the delay because the delay was due to the police and prosecution's attempt to secure as much evidence as possible in order to prove defendant's guilty beyond a reasonable doubt. The police and prosecution were attempting to gather corroborating evidence because the only evidence against defendant was testimony from defendant's accomplice>- and from the victim, - who was a marijuana dealer. Appellate com'tS in this state have upheld longer preindictment delays than the onepresented in this case due to the desire of the police and prosecution to obtain additional conoborating evidence against a defendant (see~ People v Rodriguez, 281 AD2d 375 [151 Dept 2001] [?liz year delay found reasonable due to prosecutorial desire to gain more evidence, not to gain a tactical 8 advantage]~ People v Nazario, 85 AD3d 577 [151 Dept 2011] [12 year delay found reasonable due to prosecution's efforts to acquire substantial corroborating evidence in order to prove defendant's guilt beyond a reasonable doubt]). Detective DeJoseph and Assistant District Attorney Kasmarek both testified at the pretrial hearing and explained the various reasons for the delay in indicting defendant. Detective DeJoseph explained that he waited to interview defendant because he was waiting for the DNA results from the sweatshirt, ha.ndgm1, and video game controller recovered after defendant fled the scene of the crime (Hl. 21-23). DeJoseph also indicated that part of the reason for the delay was due to defendant' s incarceration for an umelated crime at the time, and his preference to avoid interviewing defendant while defendant was confined in State prison (Hl . 21-23). DeJoseph indicated that he clid not immediately interview defendant after he was identified by - and - because he wanted to try to find corroborating evidence of the identifications since both- and - were arrested after the incident (Hl. 29-30). Defendant was released from custody on April 10, 2009 and Detective DeJoseph attempted to locate defendant to interview him but was unable to do so (HI. 25) . On May 24, 2010, Detective DeJoseph learned that defendant was back in custody, this time at the Jamesville Correctional facility in Onondaga County (Hl. 25). DeJoseph spoke with defendant on September 20,2010, and submitted a warrant application to the District Attorney's Office on September 22, 2010 (H 1. 26-28). The remaining delay was due to the prosecution's attempts to track down the two witnesses involved in the case and to make sure there enough evidence to present to a Grand Jury. Assistant D istrict 9 Attorney Kasmarek eventually was able to contact the two witnesses,- and - and p resented the case to the Grand Jury in May 2011 (H2. 6-1 1 ). Contrary to defendant's contention (at 11-14 of defendant's brief) that the reasons for the delay were due to the People's negligent inaction, the prosecution established sufficient good cause reasons for the delay in indictment. The prosecution's reasons for the delay p roperly convinced the hearing court to find good cause for the delay and deny defendant's motion to dismiss the indictment. Defendant has failed to show that any of the actions by the police or prosecution in this case rose to the level of' inadve1tence" or "sheer neglect or trifling" as seen in People v Staley (41 NY2d 789, 792 [1977]), People v Wheeler (289 AD2d 959, 959 [4th Dept 2001]), and People v Gallup (224 AD2d 838, 840 [3rd Dept 1996]), "Which defendant cites for this contention. Defendant improperly analogizes the facts in his case to these three cases in an attempt to portray the police and prosecution as negligent. The reasons for the delay here is not similar to those three cases in defendant's case (see People v Wh~!;Jer, 289 AD2d at 959 [prosecution possessed all of the information necessary to charge the defendant with perjury, and told the defendant of its intention to prosecute him for that crime, but admitted that a 22-month delay in indicting the defendant was due to inadvertence and did not give any other good cause reason] ~ People v Staley, 4 1 NY2d at 791 [the defendant was arrested, but the complaint was dismissed at the request of the District Attorney so that the charges could be directly presented to the Grand Jury, but the case was not presented to the Grand Jury until over two and a half years later]; People v Gallup, 224 AD2d at 840 [prosecution provided only vague references to a substantial 10 backlog of cases and a turnover of persom1el to justifY a delay of more than four years in obtaining an indictment]). The reasons for the delay in the indictment of defendant clearly do not rise to the level of "inadvertence" or "sheer neglect or trifling" as seen in Wheeler, Staley, and Gallup. The prosecution and police provided substantial reasons for the delay in indicting defendant and the trial court correctly found that these reasons established good cause for the delay. No testimony presented at the motion to dismiss hearing indicated that the prosecution or the police were acting with negligent inaction as defendant alleges. Therefore, the prosecution and police presented sufficient good cause reasons to justify the four and a half year delay in indicting defendant. C. The charges against defendant were serious in nature. The nature of the underlying charges against the defendant were serious in nature. The first five counts in the indictment against defendant were B violent felony offenses and he was facing a maximum of 25 years determinate in state prison for the charges against him. The evidence presented to the grand jury established that there was reasonable cause to believe defendant used a loaded firearm to rob and burglarize the victim. D. There was no extended period! of pretrial incarceration. Defendant was not incarcerated for the current charges before the indictment was filed. Defendant was incarcerated during the four and a half year time period on multiple occasions for several unrelated offenses, which was part of the reason for the delay in the current indictment (Presentence Report [PSR.] at 5). 11 E. Defendant was not impaired or prejudiced by the four and a half year delay. There is no indication that the defense has been impaired by reason of the delay. Defendant claims (at 14-15 of defendant's brief) that his defense was impaired because of the State's delay. Defendant has failed to put forth any valid and specific claim that the delay has impaired or prejudiced his defense. Defendant contends that he was specificaHy prejudiced by the police and prosecution's failure to look for possible stuveillance tapes from a Kentucky Fried Chicken [KFC] where, according to- defendant met with ills codefendant before the robbery (HI. 64-65). Defendant has not shown how this alleged prejudice or impairment was somehow increased by the delay in indictment. Detective DeJoseph testified he chose not to go and check the KFC for surveillance footage from the night of the robbery (HI. 65). DeJospeh stated that investigatively be did not know what, if anything, the tapes would have shown (Hl. 65). There was also no indication how long the surveillance tapes would have. been preserved. DeJoseph did not have the opportunity to interview the codefendant, - until two months after the robbery had occurred. After speaking with- Detective DeJoseph made the decision not to check for surveillance tapes at the KFC, cut at that point, recovering useful surveillance footage from two months earlier would have been unlikely. Nor has defendant shown prejudice from the fact that- gave police the name of a woman who drove them to - residence. The identity ofthe person who drove them there is not a material element of the crimes charged in the indictment. Defendant's case was not impaired or prejudiced by Detective DeJoseph's failure to check the surveillance tapes. The four and a half year delay did nothing to increase the 12 alleged prejudice of DeJoseph's decision not to check for the tapes. Therefore, defendant has failed to establish impairment or specific prejudice to his defense due to the four and a half year delay. Weighing the factors outlined in People v Taranovich, the trial court correctly denied defendant's motion to dismiss the indictment on due process speedy trial grounds because the prosecution provided a good cause for the excessive delay and defendant was not specifically prejudiced as a result of the delay. CONCLUSION The People respectfully ask this Court to affirm defendant's conviction. JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney COLIN LYNCH, Criminal Law Associate Respectfully submitted!, WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney Attorney for Respondent Criminal Courthouse, 4th Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470 Syracuse University College of Law Externship Program Of Counsel DATED: April20, 2015 13