The People, Respondent,v.Clinton Johnson, Appellant.BriefN.Y.November 14, 2016People v Johnson (Clinton) APL-2016-00142 John Asiello Clerk of the Court Court of Appeals 20 Eagle Street Albany, New York 12207 September 1, 2016 Re: People v. Clinton Johnson, Docket No. KA 12-01597 Dear Mr. Asiello: On July l, 2016, the Honorable Eugene F. Pigott, Jr. issued an order granting Mr. Johnson's application for leave to appeal to this Court. On July 25, 2016, this Court issued a letter requesting that the parties make further submissions pursuant to section 500.11 of the Court of Appeals Rules ofPractice. Please accept this letter as Mr. Johnson's responsive submission. I. This Appeal Should be Considered after Full Briefing and Oral Argument, and not Pursuant to Rule 500.11, because it Presents Important Unsettled Issues of Law with Statewide Significance Regarding the Standard of Review Applicable to Excessive Pre- Indictment Delay Cases. This Appeal would also Resolve a Department Split Over the Question of how to Prove Prejudice from Protracted Delay. This appeal regarding pre-accusatory delay presents two basic, but crucial, questions that this Court should resolve only after full briefing and oral argument. The first is whether negligent inaction can excuse protracted pre-indictment delay as long as there is no showing of willful bad faith by the State? The second 1 question is whether a defendant must show that lost evidence or key witnesses would actually be exculpatory in order to show prejudice from undue delay? This appeal implicates issues of basic faimess. It also requires a careful balancing between the needs of law enforcement to properly develop investigations and the due process rights of an individual defendant. Striking this complex balance is a task uniquely within the purview of this Court. This appeal also presents a Department split regarding how a defendant proves prejudice resulting from excessive pre-indictment delay that this Court should resolve. Finally, this appeal involves questions of law that have statewide significance, and this Court should take this opportunity to instruct lower courts on how to properly evaluate pre-indictment delays. Given the important issues at stake here, the complexity of balancing the needs of law enforcement to develop a prosecution with a defendant's due process right to a prompt prosecution, and the need to resolve a Department split, full briefing and argument are warranted. The tension between a defendant's right to fair notice and speedy prosecution, and the legitimate law enforcement need to gather sufficient evidence, is an issue that every police department and trial court throughout New York grapples with. This Court should take the opportunity to send a clear message as to how that balance should be struck. In the alternative, 2 this Court should reverse the Appellate Division holding on the merits for the reasons set forth below. II. This Appeal Presents an Issue of Law. The Facts Adduced at the Two-Day Singer Hearing Are Not in Dispute. This case involves 4\1:, years of pre-indictment delay. The crime occurred on January 20, 2007. Clinton Johnson was not indicted until June 30, 2011. He was arraigned on August 30, 2011 (Appellate Division Appendix ["A."] at 4, 7-9). He pled guilty to attempted criminal possession of a weapon in the second degree on May 25, 2012 and was sentenced on June 20, 2012 to 5 years in prison (A.4). The prosecution took over four years to indict Mr. Johnson on a simple robbery charge. In the meantime, critical evidence was lost, crippling Mr. Johnson's right to a fair trial. No legitimate justification was provided for the substantial delay. The lower court held a two-day hearing pursuant to People v Singer (44 NY2d 241 [ 1978]), at which the People put forth two reasons for the long 4\1:, year delay. There is no dispute as to the fact conclusions reached by the lower court regarding the reasons for the delay. There is also no dispute regarding the fact that the People, as of March 2007, had the evidence they used to obtain the indictment in June 2011. 3 The record from the two-day Singer hearings, held on January 27, 2012 and February 1, 2012, is included in the enclosed supplemental appendix. Citations to this record will be referred to as ("SA.") throughout this letter. Facts Adduced at the Singer Hearing On January 20, 2007, and his accomplice robbed a drug dealer named at gun point in Syracuse (SA. at 7-9, 96-97).- was apprehended at the scene while the accomplice escaped (SA. at 7-8, 97). The accomplice discarded a gun and sweatshirt as he fled (SA. at 7-8, 97). On the night of the crime,- gave a statement to the lead investigator, Detective DeJoseph, identifying his accomplice as a person named "Juice" (SA. at 8, 97). He also told the police that a woman named Stephanie Green drove him and "Juice" to the scene of the crime to commit the robbery and the three of them stopped at a KFC before the robbery (A.60-61; SA. at 64-65). Stephanie Green was not interviewed and the police never recovered surveillance video from the KFC (SA. at 64-65, 88-89). - later admitted that he knew his accomplice better than he let on and told poiice his name was "Clinton" (A.132; SA. at 10-12, 97). DeJoseph used t11is information to develop Clinton Johnson as his suspect and put his photograph in an array. On March 21,2007,- met with the police and identified Mr. Jolmson as 4 his accomplice (SA. at 97-98; A.l67-168). On March 23, 2007, the complainant, -also identified Mr. Johnson in a photo array (SA. at 98; A.169-170). DeJoseph wanted to develop a DNA comparison against the sweatshirt and gun he recovered at the crime scene to see if it matched lvf.r. Johnson (SA. at 7-8, 97-99). He submitted the items for DNA testing in January and March 2007 (SA. at 19-20, 40-41, 97-99). On August 27, 2007, DeJoseph received a letter from the forensics laboratory that the comparison could not be made through COD IS and that he would need to obtain a fresh sample from Mr. Johnson if he wanted to make a comparison (A.l71-17lb; SA. at 21-22, 42-44). DeJoseph admitted he knew that he could have obtained a court order for a DNA sample from 11r. Johnson but did not do so because he misunderstood the letter he received from the forensics lab (SA. at 21-23, 42-44, 50-58). DeJoseph also testified that he wanted to interview Mr. Johnson but did not do so because he did not want to interview him while he was in prison on other charges (SA. at 22-24). He claimed he did not interview Mr. Johnson when he was released to Syracuse parole supervision in April2009 because he could not find him (SA. 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 scientifically/' DeJoseph finally tried to interview Mr. Johnson on 5 September 20, 2010 at the Jamesville Correctional Facility, but Mr. Johnson asserted his right to counsel and refused the interview (SA. at 42-44, 56-58, 99- 100; A.l34). DeJoseph swore out a warrant on September 22,2010, without the DNA evidence and without any statement :fi·om Mr. Johnson (SA. at 26-28; A.l 0- 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- (SA. at 45-46). The co-defendant pled guilty in September 2007, and he agreed to cooperate with the prosecution (A.54; SA. at 97). Thus, the June 2011 indictment was based on the identifi.cations made two months after the crime by the co-defendant and the drug dealer who was robbed. The People's Proffered Justifications for the 4 ~ Years of Delay The People proffered only two reasons for the 4lh-year delay. The first reason was that the lead investigator, Detective DeJoseph, wanted to obtain DNA evidence fi·om the sweatshirt and gun recovered from the scene of the crime (SA. at 19-21, 99). DeJoseph admitted he knew that he was informed on August 27, 2007, in a letter from the forensic lab, that he would need to obtain a fresh DNA sample if he wanted to compare the sample fi·om these items to Mr. Johnson's DNA (A.171-171b; SA. at 21-22, 42-44). He also admitted that he knew Mr. Johnson was incarcerated in state prison at the time and that he could have obtained a DNA sample from him if he wanted to (SA. at 22-25,42-44, 50-58). 6 DeJoseph did not do so because he misunderstood the letter received from the forensics lab and did not realize he would need a fresh DNA sample (SA. at 42-44, 50-58). DeJoseph did nothing to clear up his confusion until September 2010 (SA. at 42-44, 50-58). He conceded that no new investigation was conducted after the identifications were made in March 2007 (SA. at 45-46; 24-25). The second reason the People proffered for the delay was that DeJoseph did not want to interview Mr. Johnson while he was incarcerated on other charges (SA. at 22-24). DeJoseph admitted he knew Mr. Johnson was released to parole for at least a year during the pendency of this delay but he testified he could not locate Mr. Johnson, despite the fact that he was under the supervision of the Syracuse parole office (SA. at 24-25). DeJoseph did eventually interview Mr. Johnson on September 20, 2010 in jail, shortly before the statute of limitations was set to expire (SA. at 42-44,50-58, 99-100; A.134). Mr. Johnson refused to speak to the detective. Despite having no statement from Mr. Johnson and no additional DNA evidence, DeJoseph swore out a warrant for Mr. Johnson's arrest on September 22, 2010 (SA. at 26-28; A.1 0-13). Mr. Johnson was not actually indicted until June 30, 2011 (A.4). The indictment was based solely on the identifications obtained in March 2007. The lead prosecutor testified at the Singer hearing about the additional delay between the warrant in September 2010 and the indictment in June 2011. He explained that 7 he spent time writing a memo to his supervisors expressing concern at the long delay in bringing an indictment (SA. at 79; A.l72-172a). He also testified that he had trouble locating the co-defendant,- or the complainant,- the individuals who identified Mr. Johnson in March 2007 (SA. at 81). The prosecutor did not reach out to DeJoseph for their contact information until March 30, 2011 (SA. at 82-83 ). After he was indicted, the People obtained a DNA sample from ivlr. Jolmson and compared it to the samples from the items discarded at the crime scene and the results were inconclusive (A.l39-1 43). On May 25, 2012, Mr. Johnson pled guilty to attempted criminal possession of a weapon in the second degree. The sum total of evidence against him when he pled guilty was the identifications made five years earlier by the complainant and the co-defendant. The facts set forth above that were adduced at the Singer hearings are not in dispute. There is no mixed question because the issue is the standard to be applied to these undisputed facts. The case involves the application of the legal framework. Negligence does not equal good cause and a defendant does not need to prove that lost evidence would be exculpatory. Moreover, on numerous occasions this Comt has found the question of pre- indictment delay to be within the ambit of its jurisdiction (see e.g People v 8 Vernace, 96 NY2d 886 [2001]; People v Velez, 22 NY3d 970 [2013]; People v Decker, 13 NY3d 12 [2009]; People v Romeo, 12 NY3d 51 [2009]). In the alternative, there is no record support for the lower court and Appellate Division findings that the People had good cause for the delay or that Mr. Johnson's rights were not unduly impaired by the delay. III. The Undisputed Fact-Findings Present Two Important Questions of Law The lower court's undisputed fact findings and legal conclusions, adopted by the Appellate Division, raise two crucial questions oflaw concerning a defendant's right to a speedy prosecution for this Court to address. First, are the lower court and the Appellate Division correct that the standard for evaluating good cause for pre-indictment delay is good faith, or is it negligence? Does the desire to avoid a prison-setting interview constitute good cause for delay as a matter of law? Second, does a defendant need to show actual prejudice from undue pre- indictment delay and, if so, does this mean he needs to prove that key evidence lost during the pendency of the delay would be exculpatory? The answers to these questions will have a far-reaching impact on how excessive pre-indictment delays are evaluated in New York. If the Appellate Division ruling stands, a defendant will have to show malicious intent by the prosecution, not just negligence. This approach is contrary to this Court's 9 precedent and it is bad policy because it will make it virtually impossible for a defendant to succeed on a claim of excessive pre-indictment delay. It also creates a negative incentive for the prosecution to delay bringing cases to indictment and "bury their head in the sand," knowing that they will face no repercussions and will gain a substantial advantage at the expense of a defendant's important constitutional right to present a defense (Chambers v Mississippi, 410 US 284 [1973]). Similarly, the Appellate Division's rule requires defendants to not only show actual prejudice by pointing to specific evidence lost during the pendency of the delay, but also show that the evidence would have exonerated the defendant. This, like having to prove actual malfeasance, is an impossible standard. The entire reason a defendant cannot prove his innocence is that the evidence has been lost, and he was never put on notice that he was suspected of committing a crime. On this question, this Court should resolve the Department split between the Third Department on one side, and the Fourth and Second Departments on the other, in favor of the Third Department approach, which would not require a showing of prejudice. IV. This Court Should Rule that Negligent Inaction Does Not Constitute Good Cause to Excuse Protracted Delays. The first issue that this Court should be troubled by is that the Appellate Division and the lower court applied a bad faith standard to evaluate the reasons 10 for the substantial delay. The lower found that the People's proffered justifications for the delay constituted good cause because the police and prosecution acted in "good faith" to secure as much evidence as possible and the "desire to avoid a prison-setting interview of the defendant was reasonable under the circumstances" (A.25). The Appellate Division adopted the lower court's language, finding that "there is no indication that the decision was made in anything other than good faith" (People v Johnson, 134 AD3d 1388, 1389 [4th Dept 2015], citing Decker, 13 NY3d at 15). Neither of the People's proffered excuses constitutes good cause as a matter of law to justify 4-Y2 years of pre-indictment delay. Negligence Does not Equal Good Cause The first proffered justification for the 4-Y2 delay was that the lead investigator, Detective DeJoseph, wanted to compare the DNA samples from the sweatshirt and the gun that- accomplice discarded as he fled the crime to Mr. Johnson's DNA (SA. at 19-21, 99). Despite being informed on August 27, 2007 by letter from the forensic lab that he would need to get a fresh DNA sample from Mr. Jolmson, he failed to do anything for the next three years, despite the fact that he could have easily obtained the sample (A.171-17lb; SA. at 19-25,42-58, 99). His excuse was that he misunderstood the letter and did not clear up his confusion until over three years letter, right before he interviewed Mr. Johnson in 11 jail in September 2010 (SA. at 42-44, 50-58). Despite the officer's admitted mistake and failure to make an effort to correct his mistake for years, the lower court and Appellate Division found that, since there was no evidence that DeJoseph acted in bad faith, the delay was acceptable (A.25; Johnson, 134 AD3d at 1389). This rule is wrong as a matter of law and sound policy. Negligent inaction, even in the absence of active bad faith, does not and should not constitute "good cause" to excuse lengthy pre-indictment delays. The bumbling but well-meaning constable cannot excuse the 4Yz years of delay. This Court should make clear that negligence does not constitute "good cause." Requiring a defendant to show willful bad faith on the part of the prosecution would essentially eliminate due process claims based on excessive pre- indictment delay because this standard is all but impossible to meet. It would be an extremely rare circumstance that a defendant could develop evidence that the State acted in bad faith. A standard that excuses negligence is contrary to this Court's precedents in this area as well as related areas of law, such as case law dealing with Brady violations, which impose a strict liability on the prosecution to preserve potentially exculpatory evidence. No matter how well-meaning their intentions, the prosecution is held to a negligence standard (see e.g. Brady v Maryland, 3 73 US 83 12 [1963]; United States v Bryant, 439 F2d 642, 653 [DC Cir Ct 1971]; People v Martinez, 71 NY2d 937, 940 [1988]). In explaining the imposition of a negligence standard, the Supreme Court held in Brady that: "The principle .. .is not punishment of society for misdeeds of a prosecution but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly ... A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not 'the result of guile' ... " (Brady, 3 73 US at 87-88 [citations omitted] [emphasis added]). Just as an unfair trials result from the failure to turn over potentially exculpatory evidence, justice is impaired when potentially exculpatory evidence is lost due to the prosecution's excessive delays. And just as the prosecutor can bring the heavy weight of a tilted trial on a defendant by not complying with Brady, the State can severely disadvantage a defendant by withholding prosecution and not putting him on notice of the need to gather evidence for years, fatally damaging his ability to defend himself. Moreover, the right to a speedy trial also implicates concepts of fundamental fairness and societal interests that go beyond justice for the individual defendant (Barker v Wingo, 407 US 514, 591 [1972]). Thus, since the same principles that undergird Brady apply to the speedy trial doctrine, the same strict standard of negligence should apply. Indeed, this Court has long held 13 that negligence and mistakes would not suffice to excuse delay (see e.g. People v Staley, 41 NY2d 789, 792 [1977]). The Desire to Avoid a Prison Setting Interview Does not Constitute Good Cause The second justification for the delay was that DeJoseph did not want to interview Mr. Johnson while he was incarcerated on other charges because he was concerned that he may invoke his right to counsel (SA. at 22-24). This justification is not only belied by the officer's own actions but, as a matter of law, it has been rejected as a reason for delay. 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 People v Prosser, 309 NY 353, 360 [1955]; People v Winfrey, 20 NY2d 138, 141- 44 [1967]; 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 the evidence necessary to put on an effective defense (see Singer, at 254). Relatedly, the Supreme Court has found that prison is not an inherently coercive environment for Miranda purposes, further contradicting DeJoseph's purported concerns (Howes v Fields,_ US_ 132 S Ct 1181 [2012]; see also People vAlls, 83 NY2d 94 [1993]). Even if the desire not to interview a suspect in jail were valid as a matter of 14 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 April2009 but he did he did not even attempt to interview him or locate him through his parole officer (SA. 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. Ultimately, DeJoseph's prison interview of Mr. Johnson in 2012 belied his claim that prisons were not "conducive" to a proper interview (SA. at 42-44,57-58, 99-100). Thus, at best, DeJoseph's failure to interview Mr. Johnson constituted more negligent inaction. This Case is Distinguishable from this Court's Recent Speedy Trial Decisions Because the People did not Establish a Good Cause Reason to Delay The prosecution had all of the evidence it needed to obtain an indictment two months after the crime. The People failed to satisfy their burden of establishing good cause justification for the 4Yz-year delay. While this Court's recent precedent on pre-indictment delay has found good cause for long pre-indictment delays, even when the prosecution delayed beyond the point at which it had all the evidence needed to obtain an indictment, those cases are distinguishable because the People presented a valid, non-negligent justification for the delay. Those cases may not have involved a perfect investigation, but none of them involved what we have here, which is a stark 15 admission by the lead investigator that he made a mistake on how to read the DNA results and took no action to correct his mistake. Nor do they involve a proffered justification, not wanting to interview a suspect in jail or prison, which is not only belied by the officer's own actions but has been rejected as a reason for delay as a matter of law. In Velez (22 NY3d at 970), the delays were attributable to the fact that the police department lacked a latent print examiner to match the prints from the crime scene (id. at 971). In contrast, here, the investigator had the ability to make the DNA comparisons, he simply delayed doing so for years because he misunderstood the letter from the forensics lab stating that he would need to get a fresh DNA sample, and he then waited three years to clear up the confusion (A.171-17lb; SA. at 21-23, 42-44). In Decker (13 NY3d at 12), the police re-opened the case many years after the crime because they wanted to re-test the DNA and fingerprints using modern techniques. The police also had issues with witnesses being unwilling to testify (id. at 14-16). In contrast, here, there were no applicable advances in technology and the witnesses were fully willing to cooperate. In fact, the co-defendant's plea agreement, entered only eight months after the crime, was predicated on his cooperation against Mr. Johnson (A.54-59; SA. at 97). In Vernace (96 NY2d at 886), none of the witnesses wanted to cooperate and 16 one of the suspects fled and could not be located (id. at 887). Here, Mr. Johnson was readily accessible and the key witnesses were fully willing to cooperate. This case presents a very different and troubling proposition from this Court's recent decisions on the issue. The Appellate Division held that negligent inaction, and not wanting to interview a readily accessible suspect because he is in jail or prison, can excuse 4\t2 years of pre-indictment delay simply because a defendant is not able to point to bad faith by the prosecution. As with Brady, the prosecution should be held to a standard of negligence irrespective of good or bad faith. Withholding potentially exculpatory evidence is equally as damaging as delaying prosecution while potentially exculpatory evidence is lost to the defendant. Any other rule would fatally undermine societal interests in ensuring a fair trial by impairing a defendant's ability to present a defense. V. This Court Should Resolve the Department Split over the Required Showing of Prejudice from Excessive Pre-Indictment Delay. As set forth above, Mr. Johnson was indicted 4\t2 years after the robbery and nearly four years after the police had all the evidence they needed to obtain an indictment, as well as nearly four years after the co-defendant was sentenced and signed a cooperation agreement to testify against Mr. Johnson. The People failed to meet their burden of establishing good cause for the delay. 17 Assuming this Court agrees that negligence does not equal good cause, the second question for this Couti's consideration is what degree of prejudice to his due process right to a fair a trial must a defendant show? At the Singer hearing, DeJoseph testified that the co-defendant- told him that a woman named Stephanie Green drove him to the crime scene (A.60-61; SA. at 64-65).- also told DeJoseph on the night of the crime that he stopped at a KFC restaurant with his accomplice before driving to the crime scene (A.60- 61; SA. at 64-65). DeJoseph conceded that he knew about Ms. Green and the stop at KFC but did not interview her or check the KFC for videotape. He gave no reasons for not doing so (SA. at 64-65, 88-89). These facts regarding prejudice are undisputed, and it is impossible to controvert that these pieces of evidence could be exculpatory. It is difficult to imagine any witness more imp01iant than the woman who drove the defendants to the crime scene or any piece of physical evidence more crucial than surveillance video showing who the co-defendant was with on the night of the crime. The lower court rejected the claim of prejudice, holding that a defendant was equally prejudiced by a 4Y2-year delay as he was by a one year delay (A.25). This proposition is not only factually wrong but contrary to prevailing law, which presumes that prejudice increases with the passage of time (People v Taranovich, 37 NY2d 442, 445 [1975]). The Appellate Division's decision did not address rvir. 18 Johnson's specific claims of prejudice but simply dismissed them as "conclusory" (Johnson, 134 AD3d at 1390). The lower court and the Appellate Division erred in holding that Mr. Johnson had to prove actual prejudice from the excessive delay. The courts also erred in finding that Mr. Johnson did not show actual prejudice, as he pointed to a key witness and a key piece of physical evidence lost during the pendency of the delay. As a threshold matter, there is a Department split over whether a defendant needs to show prejudice at all from a lengthy unexcused delay. In People v Montague (130 AD 3d 1100 [3d Dept 2015]), the Third Department found that the defendant's right to a speedy trial was violated by the nearly five years of pre- indictment delay despite the absence of any actual prejudice (id. at 1102, citing People v Wheeler, 289 AD2d 959, 960 [4th Dept 2001]; People v Townsend, 270 AD2d 720, 721 [3d Dept 2000]; People v Gallup, 224 AD2d 838, 840 [3d Dept 1996]). The Fourth Department in this case and the Second Department in People v Allen (134 AD3d 730 [2d Dept 2015]) held that a defendant must show significant prejudice. This Court should take this opportunity to resolve the split in favor of the Third Department's interpretation in Montague. The very nature of a speedy trial 19 problem is that witnesses and evidence are lost from the passage of time. The passage of time due to the People's inaction is the reason that a defendant cannot mount a fair defense and also the reason it is impossible to show actual prejudice. By definition, the witnesses and evidence are lost so it is impossible for a defendant to demonstrate exactly what the witnesses would have said or what the evidence would have shown. The approach in Montague also has a sound basis in precedent, as this Court's seminal decision in Singer (44 NY2d at 241) held that excessive pre- indictment delay without good cause violated a defendant's due process right to a speedy prosecution even in the absence of special prejudice. Even if showing special prejudice is required, Mr. Johnson surely met this standard by pointing to the key witness, the woman who drove the defendants to the crime scene, and key videotape evidence, that were lost during the delay. The police knew about this witness and the potential videotape on the night of the crime but did nothing to collect it (SA. at 64-65, 88-89). Mr. Johnson did not collect any evidence since he was never on notice he was a suspect until years later. This fatally hamstrung his ability to defend himself and have a fair trial. There is no doubt that the lost evidence could have been exculpatory. But the Appellate Division apparently faulted Mr. Johnson because he could not show that the lost witness and videotape would have exonerated him because he could 20 not show what they would have revealed. This cannot be the standard. Instructive in this regard is the Brady doctrine. In Bryant ( 439 F2d at 642), the lead investigator made no effort to collect or preserve potentially crucial recordings of a conversation between an FBI agent and the defendant that was the crux of the prosecution (id. at 646-647). The court noted that: "For all we know, the tape would have corroborated Agent Pope's story perfectly; or, for all we know, it might have completely undercut the Government's case. There is not simply 'substantial room for doubt,' but room for nothing except doubt as to the effect of disclosure. What we do know is that the conversations recorded on the tape were absolutely crucial to the question of appellants' guilt or innocence. That fact, coupled with the unavoidable possibility that the tape might have been significantly 'favorable' to the accused, is enough to bring these cases within the constitutional concern. If the due process requirement is directed to evidence whose non-disclosure 'might' have harmed the accused, its purpose clearly reaches the type of missing evidence at issue here. Were Brady and its progeny applicable only when the exact content ofthe non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth infonned by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government" (id. at 648). Similarly here, the videotape and Ms. Green could have exonerated Mr. Johnson or completely corroborated the People's case. But the police made no efforts to collect this evidence, despite knowing of it on the night of the crime, and Mr. Johnson was put at a disadvantage because he had no means to collect the 21 evidence. Mr. Johnson's due process rights were violated but so was the search for the truth, as we do not know what exactly the videotape or the witness would have revealed, except for the truth one way or another. This Court should not tolerate a rule that allows prosecution inaction to result in the loss of potentially crucial evidence simply because the defendant cannot meet the impossible standard of proving that the evidence lost to him due to the State's inaction would have proven him innocent. VI. This Case is Distinguishable from People v Velez because Mr. Johnson Pointed to Specific Pieces of Evidence that were Lost During the Pendency of the Delay. This Court's most recent word on this issue is Velez (22 NY3d at 970). In Velez, the defendant did not point to any lost evidence, instead simply stating that prejudice should be presumed from the passage of time. While the presumption of prejudice should be the rule, at a minimum, it should be sufficient to point to lost evidence, as Mr. Johnson did, which might be exculpatory. This, along with the fact that the People here did not establish good cause for the delay, makes this case distinguishable from Velez. Thus, there is no recent case law from this Court controlling on this question, making the case appropriate for full briefing and argument rather than Rule 500.11 review. 22 VII. This Appeal Presents Important Public Policy Concerns that will Apply Statewide and there is Considerable Disparity in the Case Law A survey of the intermediate appellate and Court of Appeals decisions on this issue reveals considerable disparity in how pre-indictment delays are evaluated. Courts in New York have regularly reversed and dismissed when presented with protracted delays (Wheeler, 289 AD2d at 959-960 [22-month delay involving perjury]; Singer, 44 NY2d at 244-48 [four-year delay involving murder]; People v Johnson, 38 NY2d 271, 279-80 [1975] [18-month delay involving manslaughter]; Staley, 41 NY2d at 793 [31-month delay involving unauthorized use of motor vehicle]; Gallup, 224 AD2d at 839-840 [four-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 AD 3d 639, 640 [4th Dept 2004] [57-month delay involving distribution of narcotics]; People v Sinagra, 15 Mise 3d 1146[A], 2007 Slip Op 51180[U] [Sup Ct, Kings County 2007] [16-year delay involving murder]). Conversely, courts have also upheld quite lengthy delays (see e.g. Velez, 22 NY3d at 971-972 [ 43-month delay involving burglary]; Decker, 13 NY3d at 13 [15-year delay involving murder]; Vernace, 96 NY2d at 888 [14-year delay involving murder]; People v Rodriguez, 281 AD2d 375, 376 [1st Dept 2001] [7\lz 23 year delay involving murder]; People v Nazario, 85 AD 3d 577 [1st Dept 2011] [12-year delay involving murder]; People v Frazier, 159 AD2d 1017 [4th Dept 1990] [11-year delay involving murder]). These differing results stem from confusion over whether an absence of bad faith equals good cause and whether a defendant needs to show actual prejudice from a long delay. This Court should take the opportunity to clarify that negligence does not equal good cause and that even if a defendant must show actual prejudice, that showing is satisfied by pointing to potentially exculpatory evidence. Not only will these rules clarify matters and lead to more uniform results but it will give police and prosecutors more guidance about the expected standards. Just as Brady and its progeny were aimed at encouraging disclosure and the preservation of important evidence, a rule that promotes prompt prosecution will lead to greater fairness as well as aid the truth-seeking process. VIII. Reversal is Required Under the Taranovich Test As Well. Although the seminal decision on pre-indictment delay is Singer ( 44 NY2d at 241), courts have" '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 oflaw' "(id. at 253, quoting Staley, 41 NY2d at 291, citing NY Const, art 1, § 6). In Decker (13 NY2d 24 at 12), this Court noted in that regard that the five-factor test set forth in Taranovich for post-indictment delay could also be used to evaluate pre-indictment delay (id. at 15). The Appellate Division applied the five-factor Taranovich test (Johnson, 134 AD3d at 1388). It found that the first factor, the length of the delay, 53-month and 10-days, was "substantial" (id.). As discussed above with respect to the second factor, the reason for the delay, the court erred in finding good cause simply because there was no evidence of bad faith (id.). With respect to the third factor, the nature of the charges, the court focused on the seriousness of the crime. But the relevant inquiry is the complexity of the crime and the need for longer investigation (Taranovich, 37 NY2d at 450). This was not complex crime. The prosecution had everything it needed when the complainant and the co-defendant identified Mr. Johnson as the perpetrator two months after the crime. No further evidence was developed after that point. With respect the fourth factor, pre-trial incarceration, the Appellate Division noted that Mr. Johnson was not incarcerated during the delay (Johnson, 134 AD3d at 1389). This factor should not apply to pre-indictment delay because by definition there should be none beyond the time-period for speedy release set forth in CPL 190.80. The relevant prejudice inquiry in pre-indictment delay is impairment of the 25 ability to present a defense. In this regard, the fifth and final factor weighs in Mr. Johnson's favor, as he pointed to two key pieces of evidence lost during the delay. IX. New York is Experiencing a Speedy Trial Crisis and any Rule which Weakens Speedy Trial Protections Should not be Adopted. Public policy weighs against lowering the People's burden to explain excessive delays. The State of New York is dealing with a speedy trial crisis (see Daniel Hamburg, A Broken Clock: Fixing New York's Speedy Trial Statute, 48 Colum J. L. & Soc Probs 222 [2014-15]). The consequences of this speedy trial catastrophe were brought tragically to light when KaliefBrowder committed suicide after sitting in Rikers Island for three years awaiting trial for stealing a backpack, a crime for which he was never even found guilty. Browder refused several offers to plead guilty and the charges were eventually dropped. Browder was held in solitary confinement for almost a year at Rikers and suffered brutal beatings, caught on videotape, at the hands of guards and inmates (Michael Schwarz and Michael Winerip, Kalief Browder, Held at Rikers Is landfor 3 Years Without Trial, Commits Suicide, NY Times, June 8, 2015, available at www .nytimes.com/20 15/06/09 /nyregion!kalief-browder -held-at-rikers-island-for- 3-years-without-trial-commits-suicide.html). This is an unacceptable cost ofprosecutorial delays. Although Mr. Johnson was not incarcerated on these charges pre-trial, the rule espoused by the Fourth Department would result in a general weakening of the constitutional speedy trial 26 protections. This Court should not sanction such a result, as the statutory speedy trial protections have plainly not been sufficient to prevent tragedies such as the suicide of Mr. Browder. These types of tragic consequences warrant serious consideration by this Court ofthe present state of speedy trial safeguards. X. This Challenge is Preserved and Presents a Question of Law Because the Facts Adduced at the Singer Hearing are Undisputed. Mr. Johnson preserved his constitutional speedy trial challenge by moving to dismiss the indictment on the ground that his due process right to a speedy trial was violated by the 4Yz years of pre-indictment delay (A.87-91, 99-114, 115-118). The lower court held a two-day Singer hearing and then issued a written decision denying Mr. Johnson's motion to dismiss (A.16-27). This application presents a question oflaw. There is no factual dispute as to the causes for the pre-indictment delay or as to the two pieces of evidence lost during the pendency of the delay. The only questions for this Court are whether the People's proffered excuses for the substantial delay constitute good cause as a matter of law, whether a defendant must show actual prejudice in the face of a lengthy and unexcused delay, and whether the loss of a key alibi witness and video tape evidence constitutes sufficient prejudice as a matter of law. XI. This Court Should Hear the Case After Full Briefing and Argument. In the Alternative, Mr. Johnson Should Prevail on the Merits Because the People Failed to Meet Their Burden of Establishing Good Cause to Excuse the 4Yz Year Delay, and Mr. Johnson's Right to Due Process Were Impaired by the Delay. 27 This case is not appropriate for Rule 500.11 review. It presents issues of statewide importance, there is no recent controlling case law on the questions presented, and the case presents preserved questions of law. This Court should rule that negligent inaction does not equate to good cause for excessive pre-indictment delay, and that a defendant does not need to show that the evidence lost during the pendency ofthe delay would actually be exculpatory in order to prove prejudice. If allowed to stand, the Appellate Division's ruling will render claims of a due process violation as a result of pre-indictment delay all but impossible to win. The State has all the power over investigations and, if allowed to delay indictment for years on end, can fatally impair a defendant's right to a fair trial as well as impede the search for the truth. Prompt prosecution serves important goals offundamental fairness and the proper functioning of the justice system. If this Court does consider the case on Rule 500.11 consideration, Mr. Johnson should prevail on the merits. The People failed to establish good cause justification for the lengthy delay, and Mr. Johnson satisfied his burden of showing prejudice from the loss of a key witness and crucial video tape evidence. I hereby certify that this submission contains 6,889 words. 28 cc: District Attorney's Office Clinton Johnson 29 Very truly yours, ) Evan Hannay Staff Attorney Appeals Program