The People, Respondent,v.Clinton Johnson, Appellant.

Brief

N.Y.November 14, 2016

PEOPLE V JOHNSON (CLINTON) APL 2016-00142 TO BE ARGUED BY: EVAN HANNAY ATTORNEY FOR APPELLANT TIME REQUESTED: 10 MINUTES APPELLATE DIVISION DOCKE1' NUMBER: 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 REPLY BRIEF EVAN HANNAY, ESQ. ATTORNEY FOR APPELLANT HISCOCK LEGAL AID SOCIETY 351 SOUTH WARREN STREET SYRACUSE, NEW YORK 13202 (315) 422-8191 TABLE OF CONTENTS TABLE OF AUTHORJTJES .................................................................................................................... ii PRELIMINARY STATEMENT AND STATEMENT OF FACTS ...................................................................... 1 ARGUMENT ........................................................................................................................................ 2 !. REPLY TO RESPONDENT'S POINT J: MR. JOHNSON'S DUE PROCESS RIGHT TO A SPEEDY PROSECUTION WAS VIOLATED WHERE THE PEOPLE INDICTED HIM 4 y, YEARS AFTER THEY HAD EVERYTHING NEEDED TO OBTAIN AN INDICTMENT, THE PEOPLE PRESENTED NO GOOD CAUSE FOR THIS EXCESSIVE DELAY, AND MR. JOHNSON SUFFERED SPECIFIC AND SUBSTANTIAL PREJUDICE AS A RESULT OF THE DELAY ............................................. 2 A. Introduction ........................................................................................................ 2 B. The 4 Yz years of pre-indictment delay was unreasonable and the People failed to establish good cause for this lengthy delay ............................. 2 C. Mr. Johnson suffered substantial and specific prejudice as a result of the pre-indictment delay ................................................................................ 5 CONCLUSION ..................................................................................................................................... 6 TABLE OF AUTHORITIES Cases People v Allen, 13 AD 3d 639 [2d Dept 2004) .................................................................... 3 People v Corrigan, 139 AD2d 918 [4th Dept 1988) .......................................................... 4 People v Frazier, !59 AD2d 1017 [4th Dept 1990) ........................................................... 4 People v Gallup, 224 AD2d 838 [3d Dept 1996) ............................................................... 2 People v Johnson, 38 NY2d 271 [1975) ............................................................................. 2 People v Lopez, 73 Mise 2d 878 [Sup Ct, NY County 1973] ............................................. 3 PeoplevNazario, 85 AD3d 577 [lstDept2011] ............................................................... 4 People v Rodriguez, 281 AD2d 375 [1st Dept 2001] ......................................................... 4 People v Singer, 44 NY2d 241 [1978) ............................................................................ 2, 3 People v Staley, 41 NY2d 789 [1977) ................................................................................ 2 People v Wheeler, 289 AD2d 959 [4th Dept 2001] ............................................................ 2 II PRELIMINARY STATEMENT Mr. Johnson is appealing a judgment of the Onondaga County Court entered on May 25,2012. Appellate counsel filed a brief with this Court on or about March 16, 2015, and received a copy of the People's response (the "Response") on or about April 20, 2015 by mail service. This brief is submitted in reply to the People's contention that good cause existed for the 4 Y, years of pre-indictment delay in prosecuting Mr. Johnson where the State had everything it needed to obtain an indictment in March 2007, as well as the People's contention that Mr. Johnson was not prejudiced by this substantial delay. STATEMENT OF FACTS Mr. Johnson relies upon the Statement of Facts set forth in Appellant's main brief to which this Court is respectfully referred. 1 RESPONSE TO RESPONDENT'S POINT I MR. JOHNSON'S DUE PROCESS RIGHT TO A SPEEDY PROSECUTION WAS VIOLATED WHERE THE PEOPLE INDICTED HIM 4 Y, YEARS AFTER THEY HAD EVERYTHING NEEDED TO OBTAIN AN INDICTMENT, THE PEOPLE PRESENTED NO GOOD CAUSE FOR THIS EXCESSIVE DELAY, AND MR. JOHNSON SUFFERED SPECIFIC AND SUBSTANTIAL PREJUDICE AS A RESULT OF THE DELAY A. INTRODUCTION The test for whether a lengthy pre-indictment delay violates a defendant's due process right to a speedy trial was set forth in the seminal case of People v Singer ( 44 NY2d 241,253-254 [1978]), which held that the People bear the burden of establishing good cause for an unreasonable delay in prosecution. 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). Here, the People failed to establish good cause for the unreasonable 4 Y, years of pre-indictment delay, and Mr. Johnson did in fact suffer specific and substantial prejudice as a result of the delay. B. THE 4 Yz YEARS OF PRE-INDICTMENT DELAY IN THIS CASE WAS UNREASONABLE AND THE PEOPLE FAILED TO ESTABLISH GOOD CAUSE FOR THIS LENGTHY DELAY As a threshold matter, the People's argument that the reasonableness of pre- indictment delay is governed by the statute of limitations is incorrect (Response at 8). If the statute oflimitations provided the litmus test of reasonableness, due process speedy trial claims would only be relevant for crimes without a statute of limitations, rendering a whole line of cases superfluous (People v Wheeler, 289 AD2d 959, 959-960 [4th Dept 2001]; People v Johnson, 38 NY2d 271, 279-280 [1975]; People v Staley, 41 NY2d 789, 793 [1977]; People v Gallup, 224 AD2d 838, 839-840 [3d Dept 1996]; People v Lopez, 2 73 Mise 2d 878, 882-883 [Sup Ct, NY County 1973]; People v Allen, 13 AD3d 639, 640 [2d Dept 2004 ]). The 4 Yz years of pre-indictment delay was unreasonable because the People, as conceded in their Response, had everything they needed to obtain an indictment in March 2007 (Response at 3). New York courts have repeatedly held that similar or lesser delays are unreasonable when the People delay prosecution after they have everything they need to obtain an indictment (Appellant's Brief at 1 0). The People put forth two justifications for this unreasonable delay. The first justification was that Detective DeJoseph was trying to obtain corroborating DNA evidence to tie Mr. Johnson to the crime scene (Response at 9). The Response omits the crucial fact that DeJoseph was aware in August 2007 that the sample he recovered could not be entered into New York's COD IS database so he would have to obtain a fresh DNA sample from Mr. Johnson (Appellant's Brief at 12). DeJoseph conceded that he was aware that Mr. Johnson was incarcerated at that time and that a DNA sample could have easily been obtained from him (id.). Yet, DeJoseph did not do anything further on this case until September 2010 when he interviewed Mr. Johnson in prison (Response at 9). The People presented no explanation in their Response for this negligent inaction. The second justification proffered by the People was that DeJoseph did not want to interview Mr. Johnson while he was incarcerated (id.). This excuse fails as a matter of law and is belied by the factual record. On the law, the Court of Appeals has held that the fact that a suspect is incarcerated weighs against the prosecution. In fact, this was the exact justification rejected by the Court of Appeals in Singer for waiting four years to arrest defendant on a murder charge (Singer, 44 NY2d at 248 [the investigating detective 3 waited to interview defendant until he got out of prison because it "seemed like a logical thing to do"]). The excuse that DeJoseph did not want to interview Mr. Johnson while he was incarcerated is also belied by the factual record. DeJoseph could have interviewed Mr. Johnson before he went to prison in August 2007, and he was also aware that Mr. Johnson was released from prison in April 2009 (Response at 9). Yet he did not avail himself of these opportunities (id.). The People's claim that DeJoseph could not locate Mr. Johnson is not credible (id.). It defies common sense that a Syracuse detective with 15 years of experience could not locate a parolee under the supervision of the Syracuse parole department (Appellant's Brief at 5-6). Finally, this excuse is belied by the fact that DeJoseph did in fact interview Mr. Johnson in prison in September 2010 (id. at 13). The cases cited by the People excusing pre-indictment delay are distinguishable (Response at 7). In People v Corrigan (139 AD2d 918, 919 [4th Dept 1988]), a IS-month delay to investigate a double murder was excused because the People did not have sufficient evidence to obtain an indictment until they were informed that the defendant had admitted responsibility for the crime. In People v Rodriguez (281 AD2d 375, 375 [1st Dept 200 I]), a 7 Yz year delay in an execution-style murder prosecution was excused where, unlike here, defendant could not be located. In People v Nazario (85 AD 3d 577 [1st Dept 2011]) and in People v Frazier (!59 AD2d I 017 [4th Dept 1990]), both involving murder prosecutions, the People were able to present substantial justifications for the delays. In contrast to these cited cases, the People had everything they needed to obtain an indictment by March 2007, Mr. Johnson could have been located at any time, and the 4 necessary witnesses identified Mr. Johnson a mere two months after the crime occurred (Response at 3). There was simply no good excuse to wait 4 Y, years after the crime to obtain an indictment. C. MR. JOHNSON SUFFERED SUBSTANTIAL AND SPECIFIC PREJUDICE AS A RESULT OF THE LENGTHY PRE-INDICTMENT DELAY The People argue that Mr. Johnson was not prejudiced by the delay, even though potentially exonerating video tape evidence was lost, because DeJoseph stated "that investigatively he did not know what, if anything, the tapes would have shown" (Response at 12). First, as the People acknowledge, the robbers stopped at the KFC immediately before the robbery so surveillance footage could have revealed their identities (id.). Second, the issue is not what steps the State claims would or would not have been taken. The prejudice stems from the fact that Mr. Johnson was never put on notice that he was a suspect so he was unable to take steps to obtain and preserve crucial evidence. Had Mr. Johnson been on notice, his counsel could have subpoenaed the tapes. Similarly, the People's claim that the "identity of the person who drove" the robbers to the crime scene is not "material" is not a credible assertion (id.). In a case that turns entirely on identity, it is hard to imagine a more important witness for Mr. Johnson's defense than this. If Mr. Johnson had been on notice, he could have obtained a statement from her and subpoenaed her to testifY at trial. Thus, the People's unreasonable and unexcused delays specifically and substantially prejudiced his constitutional right to mount an effective defense. 5 CONCLUSION For the reasons set out above and in Appe1lanfs main brief, Mr. Johnson was denied his due process right to a speedy prosecution and the conviction should be reversed and indictment dismissed. DATED: April30, 2015 6 Respectfully submitted, EVAN HANNAY, ESQ. STAFF ATTORNEY HISCOCK LEGAL AID SOCIETY A TTOR.t~EY FOR APPELLANT 351 SOUTH WARREN STREET SYRACUSE, NEW YORK 13202 \. \. \