Justice Joanne Quinones

Gardner moved for dismissal of the indictment, charging him with rape, sexual abuse, and related misdemeanors, arguing prosecutors were barred by the statute of limitations. It was alleged Gardner forced then 15 year-old complainant to engage in intercourse at gunpoint in 1994. A sexual assault evidence collection kit was performed at the hospital and despite diligent efforts, Gardner was not identified until a “hit” was received by NYPD that Gardner's DNA from New Jersey matched the profile under prosecutors' indictment filed in 2004 against “John Doe.” He moved for dismissal on speedy trial grounds but was denied as the trial court ruled any delay resulting from prosecutors' alleged failure to produce Gardner after they were notified of the DNA “hit” was excludable as an exceptional circumstance. The court also denied dismissal of the felony charges on statute of limitations grounds finding the tolling provision in CPL §30.10(4)(a) applied noting Gardner's whereabouts were continuously unknown and unascertainable by the exercise of due diligence until the DNA match. The tolling period applied to the 2004 indictment, which was timely for the felony counts and dismissal was denied. Yet, the misdemeanor charges were dismissed as tolling was inapplicable.