People v. King

In the indictment, the defendant was charged with Rape in the first degree (Penal Law §130.35 [4], Kidnapping in the second degree (Penal Law §135.20), Rape in the third degree (Penal Law §130.25 [3]), and Endangering the Welfare of a Child (Penal Law §260.10 [1]. On December 19, 2013, counts 2, 3 and 4 were dismissed as barred by the relevant statute of limitations. On June 9, 2016, following a jury trial the defendant was found guilty of Rape in the first degree (Penal Law §135.35 [4]). On July 6, 2016, the court sentenced the defendant to 23 years’ prison to be followed by five years’ post release supervision. The defendant appealed his conviction to the Appellate Division, Second Department. On March 31, 2021, the Appellate Division, Second Department, reversed the conviction, finding principally that the trial court had erred in examining the complainant (hereinafter referred to as C.P.) ex parte about her mental health history and then striking testimony she had already given and remanded the case for a new trial. (see People v. King, 192 AD3d 1140, [2nd Dept 2021]. The defendant filed a motion on November 23, 2021, to dismiss the indictment pursuant to CPL §§190.65, 210.20-210.40, on various claims. Broadly categorized, his claims center on the alleged knowingly false presentation to the grand jury by the prosecutor of testimony of the OCME criminalist regarding the DNA findings and the failure to present to the grand jury various inconsistent accounts and a complete recantation by C.P. of the sexual assault. The defendant also has moved to dismiss the indictment on the basis that the evidence before the grand jury was legally insufficient to establish the age of the defendant at the time of the alleged rape and on the failure of the prosecution to properly admit into evidence as business records the hospital records pertinent to C.P.’s allegation of rape. The defendant also has moved to dismiss the indictment based on unreasonable pre-arrest delay, and in the furtherance of justice. Lastly, the defendant seeks to invalidate the People’s certificate of compliance dated October 22, 2021. In response, the People filed an affirmation opposing the defendant’s motion in all respects, which is dated February 2, 2022. First, the People argue the defendant’s motions seeking to dismiss the indictment because the integrity of the grand jury was compromised and the evidence before the grand jury was legally insufficient is time barred. Secondly, the People argue the law of the case bars review of these claims. Specifically, the People contend that any errors made by the prosecutor or the expert witness regarding the DNA evidence did not rise to the level that it impaired the integrity of the grand jury proceedings and there was no duty on the People to present to the grand jury exculpatory evidence. In addition, the People argue the defendant is not entitled to dismissal of the indictment based on pre-arrest prosecutorial delay. On April 20, 2022, the defendant submitted a reply to the People’s opposition papers. On May 17, 2022, the People filed a supplemental certificate of compliance. And on May 25, 2022, the defendant submitted a sur reply. This court has reviewed the filings submitted by the parties in connection to the claims raised in his motion, all the exhibits submitted therewith, including the testimony of the witnesses who testified before the grand jury, the trial minutes, and the court file. RELEVANT FACTUAL BACKGROUND At the grand jury C.P. testified that on June 7, 2004, then 12 years old, she was walking home from school when the defendant stopped and spoke to her from his car. During that interaction the defendant gave C.P. his phone number and told her his name was John King. The next day she called the defendant and they chatted awhile. On the evening of June 9, 2004, C.P. was at home when she was asked to pick up Chinese food from a nearby restaurant. She went and, while waiting for the food, called the defendant from a payphone. The defendant was in the area and offered to give her a ride home. When the defendant arrived, he told C.P. to get in the backseat. After driving awhile, the defendant parked in an alley in the area of 116th Avenue and 224th Street. He climbed over the seat and got into the back seat with C.P. and tried to kiss her. C.P. told him she wanted to leave but he got on top of her and pulled down her pants. C.P. told him to stop but he continued to force himself on her and inserted his penis into her vagina. Following the sexual assault during the early morning hours of June 10th, C.P. was dropped off by the defendant near Roseann Wilson’s house. C.P. explained Ms. Wilson was a family friend with whom she had a close relationship with as a child. C.P. told Ms. Wilson she had been raped. Ms. Wilson then called 911. C.P. was then taken by ambulance to Jamaica Hospital. C.P. was examined and treated by a doctor who swabbed C.P. for biological fluids and collected her clothing for later DNA examination. Following C.P.’s examination, a police officer took possession and vouchered the sexual assault evidence kit that contained the swabs and clothing taken from C.P. for DNA analysis by the New York City Office of the Chief Medical Examiner (hereinafter OCME).¹ C.P.’s Accounts of the Sexual Assault and Recantation that were not presented to the Grand Jury C.P. falsely told a police officer who responded to Ms. Wilson’s house that a man came out of a car and threatened her at knifepoint. The man told her to get in the car or else they were going to kill her. The man forced her to do oral sex and vaginal sex with him. Upon arrival at Jamaica Hospital, a physician examined C.P., found no signs of trauma or injury, collected her clothing and took samples for inclusion in a sexual assault evidence kit. (Trial tr at 624-627) C.P. told the physician she was penetrated “from behind” (Trial tr at 630). C.P. also falsely told a police officer who initially interviewed C.P. at Jamaica Hospital that she could not see the perpetrator’s face, who she described as a stranger, because it was raining and drizzling. Later, when interviewed by two detectives, C.P. falsely stated the perpetrator wore a ski mask. Finally, C.P. told another detective that she “made the story up so [she]would not get in trouble” for staying out late. (Trial tr at 520). Following C.P.’s recantation, the police investigation was closed. Although C.P. knew the name and phone number of the defendant she never informed the police and medical staff. At trial, C.P. explained she purposely omitted telling anyone she knew the name and phone number of her attacker and made up the false narratives of how she was attacked to make her story more believable to her family who, she contended, believed she was always lying.² OCME’s 2004 DNA Analysis Eli Shapiro, a criminalist at the Department of Forensic Biology at the OCME examined the items in the sexual assault evidence kit that had been collected from C.P. at Jamaica Hospital and issued a report under lab number FB04-0968 dated December 10, 2004. The findings of the analysis show that no evidence of male DNA was found on samples from C.P.’s vaginal and anal swabs. Although evidence of male DNA was detected on a stain on C.P.’s underwear labeled 1A1, and on a stain on C.P.’s tank top labeled 1A, there were insufficient DNA in either location to match it to anyone. A complete male DNA profile was detected on a stain on C.P.’s sweatpants labeled 3B. Finally, the report also indicated semen was found on C.P.’s vaginal and anal swabs, underwear, tank top and sweatpants based on the presence of the P30 antigen. The 2004 OCME DNA report noted that the complete male DNA profile that was identified did not match any previous DNA cases but the DNA results would be entered in the National Combined DNA Indexing System (CODIS) for future comparison. In the meantime, the assailant remained unidentified.³ Pre-Arrest Delay In an unrelated 2009 investigation in which the police ultimately determined that the defendant had nothing to do with, the police collected a beverage bottle that the defendant left behind after being questioned and submitted it for DNA analysis. OCME processed the bottle and generated a DNA profile that matched the male DNA profile generated in 2004 from the back of C.P. sweatpants that was labeled stain 3B. OCME notified the police and the Queens District Attorney’s Office of this match by email on February 2, 2009.⁴ Nevertheless, no action was taken on OCME’s February 2, 2009, notification by either the police or the Queens District Attorney’s Office. In connection with a misdemeanor conviction in 2013, a DNA sample was taken from the defendant by the New York State Division of Criminal Justice Services (hereinafter DCJS). The defendant’s DNA sample was later compared to and matched the male DNA profile taken from the stain on the back of C.P.’s sweatpants. It was not until the Queens District Attorney’s Office received the DCJS notification that the defendant’s DNA matched the male DNA profile from C.P.’s 2004 case that evidence was presented to a grand jury in October 2013. On October 1, 2013, several days before Dr. Budimlija, a criminalist who had reviewed the DNA results from the 2004 OCME analysis, testified before the grand jury, Assistant District Attorney Eric Rosenbaum, who then was the supervisor of the DNA Unit, wrote a memorandum to his superiors. In the memorandum Assistant District Attorney Rosenbaum (hereinafter the grand jury prosecutor) previewed the forensic evidence he expected to present to the grand jury. The grand jury prosecutor wrote “A DNA profile was developed based on semen found on the complainant’s sweatpants, and this profile matched John King.” (Reply affirmation of defendant’s counsel, exhibit Z) Grand Jury Testimony of Dr. Zoran Budimlija⁵ Dr. Budimlija testified about the 2004 DNA testing that had been performed on the clothing and biological swabs taken from C.P. He had been assigned to the Department of Forensic Biology with OCME since 2001 with a title of City Research Science level 4a which he described as the “highest managerial position at the Department of Forensic Biology.” (GJ tr at 12) Dr. Budimlija testified that he had performed, supervised or reviewed “tens, if not hundred of thousands” of DNA analysis. (GJ tr at 16) Dr. Budimlija said he examined the results of tests performed on the contents of a rape kit that had been collected from C.P. that was assigned OCME file FB 04-0968. That file was received in evidence as grand jury exhibit 1. (GJ tr at 22) Dr. Budimlija said C.P.’s vaginal swab, anal swab, underwear, tank top and sweatpants tested positive for semen. The following exchange then occurred between the grand jury prosecutor and Dr. Budimlija: Q. And on what items in the [sexual assault] kit was semen found? A. Reading from the laboratory report dated on December 10, 2004, laboratory number Q. Well doctor, let me back up. I don’t want you to read from the item in evidence. Having reviewed the document yourself and looking at the data in the document, can you tell us what items, based on your own review[al] of the evidence in that file, tested positive for semen? A. These were a vaginal swab, an anal swab, underwear, tank top and sweatpants from the victim. Q. And were those items with the semen on them then tested for the presence or subjected to DNA analysis? A. Yes. Q. And were any male profiles found? A. Yes. Q. How many? A. One. Q. Did each of the semen samples yield a DNA profile of a male? A. Yes, those that I just listed, yes. Q. And how did those profiles compare to one another? A. They were the same. Q. Therefore what could you tell us about the various semen samples in the sexual evidence kit from the vaginal swab, anal swab, etc.? A. They were belonging to the same male person. Dr. Budimlija was then presented with grand jury exhibits 2 and 3, the DCJS DNA specimen form that contained the defendant’s DNA that was taken as a result of an unrelated conviction and grand jury exhibit 3, the New York State Forensic DNA Report that compared the defendant’s DNA from grand jury exhibit 2 against the DNA profile taken from C.P.’s rape kit. The following exchange then occurred between the grand jury prosecutor and Dr. Budimlija: Q.[]Doctor, have you had the opportunity to look at the DNA profile from the specimen of John King? A. Yes. Q. And that was derived by the New York State Police according to this document, correct? A. Yes. Q. Have you personally reviewed the data in your own file, [grand jury] exhibit 1 [in] evidence, and reached your own conclusion about the DNA profile from the semen on the various objects from the rape kit in this case? A. Yes. Q. And how does the profile from the state police sample of John King compare to the semen profile in the sexual assault evidence kit that you told us should be seen in no greater than one in over a trillion people? A. These two profiles are identical. Q. What can you conclude, to a reasonable degree of scientific certainty, from the fact that the two samples are identical, that the two profiles are identical? A. It means the semen found on the items that I listed actually belong to Mr. John King. The grand jury prosecutor, following the return of the indictment, on two separate occasions, claimed, first in a sworn affirmation dated October 9, 2013, submitted to the court in support of an application to obtain a DNA sample from the defendant, that “The OCME analyzed the victim’s rape evidence kit and clothing and isolated a single male DNA profile from the semen on the vaginal swab, other swab, and items of clothing.” On the second occasion, a bail application proceeding on October 17, 2013, the grand jury prosecutor argued to the court that “[t]his case is a DNA match to the defendant’s semen on a 12 year old girl, both the vulva and anal swabs, the girl’s clothing items as well. There is a single male DNA profile from semen. It is the defendant’s.” (Affirmation of defendant’s counsel at