The People, Respondent,v.Clinton Johnson, Appellant.BriefN.Y.November 14, 2016 September 16, 2016 Hon. John Asiello Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, NY 12207-1095 Re: People v Clinton Johnson APL 2016-00142 Letter submission pursuant to 22 NYCRR 500.11 Dear Mr. Asiello: Please accept this letter as the People’s response in opposition to the letter dated September 1, 2016, from Evan B. Hannay, Esq., on behalf of Clinton Johnson (defendant), pursuant to this Court’s review of this case under 22 NYCRR 500.11. The People ask this Court to affirm defendant’s conviction. As a threshold matter, this Court should find defendant has failed to preserve his claim for this Court’s review. Defendant bases his claim on arguments he did not make in the trial- level court. If this Court finds that defendant preserved this claim, this Court should find that this case presents a mixed question of law and fact, and that the record supports the conclusions of the hearing court and the Appellate Division. Alternatively, if this Court finds that this case presents a question of law, it should find that the hearing court and the Appellate Division properly concluded that defendant was not denied due process based on preindictment delay. This Court should affirm defendant’s conviction. In an indictment filed on June 30, 2011, defendant was charged with various counts based on a robbery/burglary in Syracuse on January 20, 2007 (see Appendix 2 filed with the Appellate Division [A.] at 7-8). Defendant moved to dismiss the indictment, claiming that pre-indictment delay had denied him a speedy trial (A. 88- 91). Defendant’s motion relied upon this Court’s five-part test found in People v Taranovich (37 NY2d 442 [1975]). Acting Supreme Court Justice John J. Brunetti held a hearing on the motion on January 27, 2012 and February 1, 2012. (On September 8, 2016, the People received from defense counsel a copy of a supplemental appendix [SA.] that counsel filed with this Court, containing a copy of the hearing minutes). At the hearing, Syracuse Police Detective Christopher DeJoseph explained that the victim in this case, Anthony Russo, was in the business of selling marijuana. When one of Russo’s regular customers, “S.E.” (whose actual name is not used in this letter because he was adjudicated a youthful offender as a result of his involvement in this incident), came to Russo’s residence accompanied by another man (who was later identified as defendant) on January 20, 2007, Russo thought they were there to buy marijuana from him. But instead, the two men forced their way into the house. Defendant struck Russo in the head with a gun. The men stole marijuana and other property from Russo’s residence. Police apprehended S.E. as he tried to flee from the scene. Defendant got away, discarding a sweatshirt and a handgun as he left the area. S.E. admitted to his involvement and was arrested that day. He did not give the police the actual name of his accomplice, saying that he knew him by the nickname of “Juice.” Russo was charged with possession of marijuana (SA. 6-9). S.E., through counsel, agreed to cooperate with the prosecution. On March 21, 2007, S.E. disclosed to Detective DeJoseph that his accomplice had the first name of “Clinton” (SA. 11-12). Detective DeJoseph used this information to assemble two photo arrays, and S.E. identified defendant from one of those arrays (SA. 12-15). On March 23, 2007, Russo also identified defendant from an array of photographs (SA. 15-18). Despite obtaining positive identifications from Russo and S.E., Detective DeJosph had concerns about the case based on the fact that one of the witnesses was a codefendant and the other was charged with criminal sale of marijuana (SA. 29-30). Detective DeJoseph requested DNA analysis on the sweatshirt (SA. 19, 40-41). Detective DeJoseph was aware that defendant was incarcerated at the state facility at Willard. Rather than arrest defendant right away, Detective DeJoseph hoped to have a DNA match from the sweatshirt and confront defendant with that information in an interview (SA. 19-21). In August 2007 Detective DeJoseph received a report showing that DNA from the sweatshirt was not eligible for CODIS review (SA. 22 [CODIS being the state-wide data bank of DNA profiles – see SA. 51]). Detective 3 DeJoseph mistakenly believed at that time that the DNA from the sweatshirt had been compared to defendant’s DNA that had previously obtained by the State correctional system, or could be compared to defendant’s DNA upon a second request (SA. 43-44, 50-53). Detective DeJoseph later learned that the lab could not perform a direct comparison of defendant’s DNA obtain from a previous arrest to the DNA obtained from the sweatshirt. Detective DeJoseph decided not to interview defendant while defendant was in state prison because he still hoped that more DNA testing would eventually link defendant to the sweatshirt and because Detective DeJoseph believed the atmosphere in prison was not conducive for an interview (SA. 23-24, 46-47). Detective DeJoseph hoped to interview defendant in a setting “more conducive to open dialog” (SA. 48). Detective DeJoseph was also concerned that an inmate in a state facility might not speak at all or might exercise the right to counsel (SA. 48-49). S.E. was adjudicated a youthful offender for his role in this case on September 4, 2007 (SA. 34). Detective DeJoseph obtained an order unsealing the records concerning this case, which had been sealed as a result of the youthful offender adjudication of S.E. (SA. 34). The court issued an unsealing order in September 2010 (SA. 100). Detective DeJoseph tried to locate defendant after defendant was released from prison on April 10, 2009, but had been successful when, on May 24, 2010, Detective DeJoseph learned that defendant was in the Onondaga County Correctional Facility (SA. 25). Concluding that he might not have an opportunity to interview defendant at a time that defendant was not incarcerated and still be within the statute of limitations, Detective DeJoseph attempted to interview defendant at the Onondaga County Correctional Facility on September 20, 2010, and two days later submitted a warrant application to the District Attorney’s Office (SA. 26-28). Detective DeJoseph did not recall whether he interviewed Stephanie Green, who S.E. claimed had given him and defendant a ride from a Kentucky Fried Chicken restaurant to Russo’s residence on the night of the incident. Also, Detective DeJoseph did not attempt to obtain surveillance footage from the restaurant (SA. 63- 65). The Assistant District Attorney assigned to this case, after receiving the warrant application, had difficulty locating Russo and S.E. On March 14, 2011, the Assistant District Attorney asked Detective DeJoseph to help him locate Russo and S.E. On March 30, 2011, Detective DeJoseph provided the Assistant District Attorney with contact information for them. The Assistant District Attorney then 4 contacted Russo and S.E., as well as other witnesses, and presented the case to a grand jury in May 2011. The indictment was filed in June 2011 (SA. 31-32, 78-84). After the hearing, the court denied defendant’s motion to dismiss the indictment. The court rejected as speculative defendant’s arguments that delay had caused prejudice based on possible testimony from Stephanie Green and possible surveillance footage from the Kentucky Fried Chicken Restaurant (SA. 110-111). On May 25, 2012, defendant pleaded guilty to attempted criminal possession of a weapon in the third degree. The Hon. John J. Brunetti initially imposed a term of five years in prison and five years of postrelease supervision, but that sentence was later amended to an indeterminate prison term of 2 to 4 years. Defendant’s conviction was unanimously affirmed by the Appellate Division, Fourth Department, on December 23, 2015 (People v Johnson, 134 AD3d 1388 [4th Dept 2015]). The Appellate Division found that the hearing record in this case established good cause for the delay in bringing this prosecution (id. at 1389, citing People v Velez, 22 NY3d 970, 972 [2013]). The Hon. Eugene F. Pigott, Senior Associate Judge of this Court, granted defendant’s application to appeal to this Court on July 1, 2016. Both the hearing court and the Appellate Division properly applied this Court’s five-part test found in this Court’s decision in People v Taranovich (37 NY2d 442, 445 [1975]) to the facts of this case. It would have been speculative to grant dismissal based on the fact that the codefendant had mentioned that Stephanie Green had given him and defendant a ride to the scene of the crime. The record does not suggest that this possible witness to antecedent actions in this case had anything other than inculpatory information to offer. And that possible witness had not spoken to defense counsel (see SA. 111). Also, the hearing court properly recognized as a factual matter that businesses that have surveillance cameras may erase the footage after 24 hours and that it would be speculative to find that footage would be kept for even 30 days (SA. 110). Defendant appears to be asking this Court to create a rule that requires dismissal where a defendant points to what appears to be inculpatory evidence, and suggests that because of the passage of time within the statute of limitations, courts must pretend or speculate that this evidence might have actually been exculpatory. And here, the evidence defendant points to does not even directly involve the crime itself. Instead, any testimony by Stephanie Green and any surveillance footage would have only related to where defendant and his codefendant were before the crime and how defendant and the codefendant arrived at the crime scene. Defendant makes meritless arguments in his Rule 500.11 letter that were not made in the hearing court. He now argues that Detective DeJoseph was negligent for 5 not realizing that a new DNA sample would be needed from defendant to make a comparison with DNA from the sweatshirt. Defendant is also critical of Detective DeJoseph for hoping to interview defendant outside of the walls of a prison. But the hearing minutes show that Detective DeJosph made decisions on how and when to proceed based on his judgment and his desire to try to obtain more evidence that the information provided by a codefendant and a person who was in the business of selling marijuana. And Detective DeJoseph consciously operated within the statute of limitations. Defendant suggests in his letter (at 26) that New York State is experiencing a speedy trial crisis. The example he gives is where a person who was incarcerated for an extended time awaiting trial committed suicide. As tragic as that case may be, it does not have any bearing on defendant’s case. Detective DeJoseph endeavored to gather evidence before charging defendant. That approach is admirable and could serve to avoid a situation where police arrest a person for a charge that is later, possibly after extensive pretrial or even post-conviction incarceration, deemed unfounded. The People ask this Court to affirm defendant’s conviction. I certify that this submission contains 1,817 words. Respectfully submitted, James P. Maxwell Chief Assistant District Attorney cc: Evan Hannay, Esq. – Hiscock Legal Aid Society