Defendant seeks speedy-trial dismissal of this gun-possession case, arguing that the People should be charged with the preindictment delay resulting from their obtaining and testing his DNA and comparing it to the DNA found on the subject gun. Because this court concludes that the speedy-trial statute allows the People the time they need to secure and test DNA when it is material to the allegations and they act expeditiously, the motion is denied. On June 2, 2017, defendant was arraigned on a felony complaint alleging that on June 1 his parole officer recovered two loaded handguns from a bedroom in which defendant admitted he resided. His case was adjourned to June 6 for grand jury action. As there was none on that date, the case was adjourned to December 29.On June 7, the People requested that the Office of Chief Medical Examiner (“OCME”) test the firearms to determine if there were detectable DNA on them. The OCME received the firearms on June 8, and began testing on July 10. The OCME issued a report with its findings on August 1. The OCME determined that there was a sufficient concentration of DNA on a swab from one, but not the other, firearm to compare to defendant’s DNA.On August 3, the case was advanced from the December calendar when the People served and filed a motion to compel defendant to submit to a DNA swab. Defendant opposed the People’s motion on September 1. The case was adjourned for a decision to September 21. On that day, the Honorable Marguerite S. Dougherty granted the People’s motion to compel defendant to submit to a DNA swab, but denied their motion for a force order as premature. Also on that day, Detective Dilson Abrea attempted to swab defendant, but defendant refused to be swabbed. The next day, September 22, the People filed a motion to be permitted to forcibly obtain defendant’s DNA.With the understanding that defendant had agreed to the swab, the People rescheduled it for October 18, while a decision on the force order was pending. Defendant, who was incarcerated on a parole hold, was again produced in court and again refused to be swabbed pursuant to the court order. On November 13, Judge Dougherty granted the People’s motion to forcibly compel defendant to submit to the swab. He was once more produced in court on November 29, and on that day submitted to the DNA swab.The swab was sent to the OCME, which received it on December 1. Testing began on December 5. On December 21, the OCME issued a report concluding that defendant was a contributor to the DNA found on the subject firearm.The People began their presentation to a grand jury on January 23, 2018, utilizing, among other evidence, the OCME report and testimony of an OCME criminalist. On February 1, the grand jury voted an indictment, and on February 2, the People filed it and stated their readiness for trial.Although defendant was scheduled to be arraigned on the indictment on February 22, the People failed to produce him until March 1, when he was produced in court and arraigned on the indictment. Defendant filed this motion pursuant to CPL §30.30 the same day.Defendant argues that the People are chargeable, among others, with all time between the filing of the felony complaint and their statement of readiness on the indictment, a total of 245 days. The People concede that they are chargeable with 54 days: the four days between defendant’s arraignment on the felony complaint on June 2, 2017, and the adjournment to June 6 for grand jury action; the 43 days between the OCME’s December 21 report and their obtaining an indictment and stating their readiness for trial on February 2, 2018; and the subsequent seven-day delay in producing defendant for his arraignment on the indictment.CPL §30.30 requires dismissal of a felony indictment when the People are not ready for trial within six months of the commencement of the criminal action (CPL §30.30[1][a]). Because defendant is charged with one or more felonies, the People are required to be ready for trial within six calendar months of the commencement of this case, or 183 days from arraignment (see People v. Cortes, 80 NY2d 201 [1992]; People v. Smith, 97 AD2d 485 [2d Dept 1983]). As the Court of Appeals explained in Cortes, supra:Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.Cortes, 80 NY2d at 208.Defendant’s argument that the People are chargeable with the entire period between the filing of the felony complaint (“the first accusatory instrument”) and their statement of readiness ignores the statutory language and case law which, as Cortes recognized, “substract[] any periods of delay that are excludable under the terms of the statute.”Periods of delay excludable under the statute are set out in subsection 4 of CPL §30.30. That subsection contains no language limiting the applicability of the exclusions to the postreadiness timeframe alone. Courts distinguish pre-and postreadiness situations in their allocation of the burden of proof on a CPL §30.30 motion. In the prereadiness context, as here, the People have the “burden of proving their entitlement to an exclusion” (Cortes, 80 NY2d at 213). Cortes expressly stated that “[s]ome prearraignment delays may be excused if they are caused by events recognized as exclusions under CPL 30.30[4]” (id.). Although the time the People use to present their case to the grand jury “ is generally chargeable to the prosecution” it may be “excludable on statutory grounds such as the unavailability of material evidence or exceptional circumstances” (People v. Daniels, 217 AD2d 448 [1st Dept 1995], app dismissed 88 NY2d 917 [1996]).In keeping with this understanding, courts have excluded preindictment time when a witness was unavailable to testify in the grand jury (see People v. Zirpola, 57 NY2d 706 [1982]; People v. Morgan, 259 AD2d 771 [3d Dept 1999], lv denied 93 NY2d 975 [1999]; People v. Pharr, 204 AD2d 126 [2d Dept 1994], lv denied 84 NY2d 831 [1994]; People v. Lashway, 187 AD2d 747 [3d Dept 1992], lv denied 81 NY2d 842 [1993]; People v. Robinson, 125 AD2d 612 [2d Dept 1986], lv denied 69 NY2d 1008 [1987]); when the People sought a preindictment lineup (see People v. Militello, 199 AD2d 1053 [4th Dept 1993]); when defendant waived speedy-trial protections in furtherance of plea negotiations (see People v. Waldron, 6 NY3d 463, 467 [2006]; see also People v. Ronzetti, 88 AD2d 982 [2d Dept 1982]); when a codefendant wished to testify in the grand jury and her attorney was unavailable (see People v. Sorce, 214 AD2d 756 [2d Dept 1995], lv denied 88 NY2d 1024 [1996]); and when a bench warrant was stayed for the defendant’s benefit (see People v. Toro, 151 AD2d 142 [1st Dept 1989], app dismissed 75 NY2d 818 [1990]). In each case, courts applied the exclusions of subsection 4, demonstrating their availability in the preindictment context (see also People v. Smietana, 98 NY2d 336 [2002] [excluding prearraignment time when People were unaware charges had been filed]).Here, the People rely on subsection 4[g], which excludes:periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people’s case and additional time is justified by the exceptional circumstances of the case.(CPL §30.30[4][g].) This exclusion is “explicitly ‘not limited to’ cases where a continuance has been granted” (Zirpola, supra, 57 NY2d at 707). The People do, however, have to show that an “exceptional circumstance” exists.The absence of material evidence which the People are diligently seeking is an “exceptional circumstance” within the meaning of CPL §30.30[4][g]. As the Court of Appeals has recognized,The time to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation as an exceptional circumstance. To invoke the exclusion provided in CPL 30.30(4)(g), however, the People must exercise due diligence in obtaining the evidence. If the exclusion “is to be given reasonable effect and…is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it” (People v. Washington, 43 NY2d 772, 774 [1977]).(People v. Clarke, 28 NY3d 48, 52 [2016]; see also People v. Henderson, 28 NY3d 63, 66 [2016] [noting that "the period of time needed to obtain the results of DNA testing could be excluded from speedy trial computation as an exceptional circumstance"]; People v. Robinson, 47 AD3d 847, 848 [2d Dept 2008], lv denied 10 NY3d 869 [2008] ["the court correctly determined that a period of time necessary to obtain the results of DNA testing in a rape case is excludable under the speedy trial statute as a 'delay occasioned by exceptional circumstances' pursuant to CPL §30.30[4][g] [citation omitted]“]; see also People v. Williams, 244 AD2d 587 [2d Dept 1997], lv denied 91 NY2d 899 [1998] ["delays occasioned by the necessity of obtaining blood and saliva samples from the defendant and his two codefendants, performing the genetic tests, and obtaining the written results of those analyses were exceptional circumstances within the meaning of CPL 30.30[4][g][i]“].)As the Clarke Court noted, the range of the exception is limited by the “dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” (Clarke, 28 NY3d at 52, quoting People v. Price, 14 NY3d 61, 64 [2010]; People v. Smietana, 98 NY2d 336, 341 [2002]). Thus, this court must consider whether the People acted diligently in seeking DNA evidence or instead could be said to have been inactive.The People sought DNA testing of the subject firearms within five days of the commencement of this action. Within two days of the OCME’s report concluding that one firearm had DNA suitable for comparison, they served and filed a motion to compel defendant to submit to the collection of DNA. They produced defendant for his court appearance and arranged for a detective to swab defendant on the very day the motion was scheduled to be decided. When defendant refused to submit to the court-ordered swab, they filed a motion for a force order the very next day. They then produced defendant twice in several weeks before they were able to obtain a swab from him.The People acted diligently in obtaining defendant’s DNA inasmuch as they sought the testing of the firearms and arranged for the collection, submission and testing of his DNA within at most days of their earliest opportunity. Thus, under the rubric described in Cortes, supra, 80 NY2d at 208, the People are charged with time from defendant’s arraignment on the felony complaint until their statement of readiness on the indictment, subtracting periods of delay when the People arranged for the DNA to be collected, tested and compared, in other words, the entire period from June 7 through December 21, and post-readiness delays for which they are responsible. As such, only at most the conceded 54 days are chargeable to the People. Because this is within the six months allotted to the People for the trial of an indictment, defendant’s motion is denied.The court rejects defendant’s assertion that the People were required to seek an indictment once he was arraigned on the felony complaint, even though they had not yet obtained DNA evidence to support the charges. There is no such legal requirement. And by proceeding in the manner in which they did, the People spared the defendant the possibility of remaining incarcerated during the pendency of DNA testing.1 Because the time when DNA evidence was sought, collected and tested is excludable as an “exceptional circumstance,” had defendant been incarcerated — either because the People had secured an indictment without DNA or successfully opposed his release pursuant to CPL §180.80-the “exceptional circumstance” exclusion that applies equally to CPL §30.30[2] release as it does to CPL §30.30[1] dismissal would have forestalled his release.To give an example of what might have happened: The defendant in People v. Goodman, 41 NY2d 888 [1977], was arrested and arraigned on a felony complaint and incarcerated for a period of approximately seven months prior to indictment, of which nine weeks were excluded because the victim was unavailable to testify as a result of her injuries. Her unavailability was found to be an “exceptional circumstance.” In cases such as Henderson, supra, 28 NY3d at 63, and Robinson, supra, 47 AD3d at 847, the time needed to collect and test DNA postindictment resulted in “exceptional circumstance” excludable delays. In the present case, in contrast, defendant was not held in custody on this case while the People sought the DNA evidence that was material to this prosecution.In finding that the People’s diligent efforts to secure material evidence is excludable from the speedy-trial calculation, this court recognizes, as did the court in People v. Juan R., 153 Misc 2d 400 [Sup Ct Bronx Co 1992]:that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty “would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.”(Id. at 405, quoting United States v. Lovasco, 431 US 783, 791 [1977] [citation omitted]). As the court in Juan R. further reasoned, again quoting the Supreme Court’s Lovasco decision, “there [is] a fundamental difference between investigative delay and a delay undertaken by the prosecutor ‘to gain tactical advantage over the accused’” (id., quoting Lovasco, 431 US at 795 [citation omitted]).Juan R., significantly, involved a 19-month delay between arrest and indictment, during which the People litigated their ability to obtain a blood test of the defendant to determine whether he had AIDS, as he had claimed after he bit a police officer. The court recognized the viability of a misdemeanor prosecution during those 19 months but ruled that the need for the AIDS test was nevertheless an excludable preindictment “exceptional circumstance.”Similarly, in People v. Johnson, 167 AD2d 422 [2d Dept 1990], the Second Department found that the People’s preindictment investigation of defendant’s alibi was an “exceptional circumstance.” In People v. Etheridge, 116 Misc 2d 98 [Sup Ct Bronx Co 1982], the court excluded as an “exceptional circumstance” the time in which the People sought a handwriting exemplar from the defendant. On the same ground, this court excluded the time during which the People investigated a complaint of police brutality made by the codefendant against a material witness in the defendant’s prosecution (see People v. Goggans, 150 Misc 2d 79 [Sup Ct Kings Co 1991, Marrus, J]). In sum, defendant’s statutory right to a speedy trial accommodates the need of the People to properly and fully investigate their case in the postarrest, preindictment context when the People proceed with diligence in seeking evidence material to their prosecution.As a final observation, if the People had attempted to obtain an indictment without DNA evidence and the grand jury had dismissed the charges, the People would have been able to seek resubmission of the case once they had acquired the evidence (see, e.g., People v. Zirpola, 88 AD2d 758 [4th Dept 1982], mod 57 NY2d 706 [1982]). In other words, the Criminal Procedure Law is expansive enough to allow the People reasonable means to investigate their case and secure an indictment using DNA evidence without trenching on defendant’s rights. In this case defendant’s right to a speedy trial was not infringed.Alternatively, this court denies defendant’s motion to dismiss because at least 118 of the allegedly chargeable 245 preindictment days are excludable: the delay from August 3, when the People served and filed their motion to compel, until it was decided on September 21 (see CPL §30.30[4][a]; Militello, supra, 199 AD2d at 1053), and the delay defendant caused from September 21 until November 29, when he finally submitted to the court-ordered DNA swab after repeatedly refusing to permit it to be taken (see People v. Worley, 66 NY2d 523, 528 [1985] [exclusions rest on theories of estoppel or waiver]; Militello, supra, 199 AD2d at 1053 [excluding time to conduct preindictment lineup]).The foregoing constitutes the decision and order of the court.Dated: April 12, 2018Brooklyn, New YorkJOHN T. HECHT, J.S.C.
