DECISION and ORDER Shakeem Jones (hereinafter: defendant), is charged, pursuant to Kings County Indictment IND-71628-23, with the crimes of Murder in the Second Degree (Penal Law [hereinafter: P.L.] §125.25[1]); and Manslaughter in the First Degree (P.L. §125.20[1])1. The defendant moves this Court for an Order dismissing the instant indictment on the grounds of a violation of the defendant’s state and federal constitutional rights to a speedy trial and due process of law, arising from pre-indictment delay. See People v. Singer, 44 NY2d 241 (1978). The People oppose the defendant’s instant motion in its entirety and the defense filed a reply. Defendant’s motion is disposed of as follows: FINDINGS OF FACT On February 20, 2015, this defendant pled guilty to Kings County Indictment 1622/2012, for the shooting of Ruben Alexander on February 5, 2012, in Kings County. The defendant received a promised total sentence from the court of thirteen-years incarceration, followed by five-years post-release supervision. After entry of the plea, while the defendant was serving his sentence of imprisonment, on December 29, 2019 Ruben Alexander is alleged to have succumbed to the wounds suffered as a result of the shooting and died. The People received the autopsy report for Ruben Alexander, from the New York City Office of the Chief Medical Examiner (hereinafter: N.Y.C. O.C.M.E.) on February 22, 2020, which listed the manner of death as a homicide and the cause of death as complications from a gunshot wound to the chest. On March 16, 2020, due to the world-wide COVID 19 pandemic, court operations in the New York State Unified Court System, inclusive of convening Grand Juries, were suspended by Executive Order of then Governor Andrew Cuomo. See Executive Order 202.8 et seq. Operations resumed on August 10, 2020 but were briefly suspended again from November 16, 2020 to November 23, 2020. In total, this resulted in an inability to present cases to a Kings County Grand Jury for a period of five months. Ultimately, the People presented the instant charges, concerning the alleged homicide of Ruben Alexander by the defendant, to a Kings County Grand Jury in March of 2023, filing the instant indictment on March 22, 2023. Although three calendar years elapsed from the death of Ruben Alexander, due to the inability to empanel a Grand Jury in this county, the delay sub judice is a period of approximately two years and seven months (thirty-one months). The defendant was arraigned on the instant indictment on April 10, 2023, the same date that the defendant was scheduled to be released from state custody on his conviction pursuant to Kings County Indictment 1622/2012, for the underlying shooting of Ruben Alexander. The People argue in their opposition to the instant motion that they attempted to arraign the defendant prior to his scheduled release date, on March 31, 2023, yet due to logistical issues with a single member of the New York City Police Department (hereinafter: N.Y.P.D.) and alleged refusal by the defendant to be produced for processing on the instant indictment, the defendant could not be arraigned on this indictment until April 10, 2023. However, this Court finds the People’s explanation for this delay in arraignment unpersuasive and, in any event, of no legal consequence. See C.P.L. §100.05. CONCLUSIONS OF LAW New York’s, as well as the Federal, Constitution guarantees criminal defendants the right to a speedy trial and prompt prosecution. People v. Staley, 41 NY2d 789 (1977); People v. Vernace, 96 NY2d 886 (2001); NY Constitution Art 1; Criminal Procedure Law (hereinafter: C.P.L.) §30.20; Sixth and Fourteenth Amendments to the U.S. Constitution. “An unjustified delay in prosecution will deny a defendant due process of law.” People v. Decker, 13 NY3d 12, 14 (2009). In addition, the Court of Appeals has held that there is no “fine distinction between due process violations based on delay in commencing prosecution and speedy trial violations…The factors utilized to determine if a defendant’s rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution.” People v. Wiggins, 31 NY3d 1, 12 (2018). The factors to be considered are: (1) the extent of delay; (2) the reason for delay; (3) the nature of the underlying charge; (4) the presence of extended pre-trial incarceration; and (5) impairment or prejudice suffered by the defendant as a result of the delay. People v. Taranovich, 37 NY2d 442, 445 (1975). Upon a finding of a speedy trial violation, the only remedy is to preclude prosecution. Id. at 444. Here, the extent of delay is a period of thirty-one months. It commenced upon the death of Ruben Alexander on December 29, 2019, but was tolled pending the availability and receipt by the People of the autopsy report on February 22, 2020. There is no temporal exclusion for continued investigation applicable to this case, except for the determination and report of the N.Y.C. O.C.M.E., finding the death to be a result of the February 5, 2012 shooting. This period continued until the filing of the instant indictment, on March 22, 2023, but was tolled for the five-month span, while Grand Jury operations were suspended due to the COVID 19 pandemic. The People’s purported reasons for delay consist of the inability to impanel a Grand Jury, backlog of cases, prioritization of cases, lack of sufficient staffing and the need to re-request lost records, which are examined in detail below. The underlying charges are of the most serious nature, Murder in the Second Degree (P.L. §125.25[1]) and Manslaughter in the Second Degree (P.L. §125.20[1]), class A and B Felonies, respectively. The defendant has been incarcerated, pursuant to his plea of guilt on Kings County Indictment 1622/2012. The final factor to take into consideration is the prejudice suffered by the defendant as a result of the delay. As discussed below, when evaluating periods of delay in commencing prosecutions, prejudice to the defendant is not always a condition precedent. Pursuant to New York law an “unreasonable delay in prosecuting a defendant constitutes denial of due process.” Singer, at 253; see also Staley, at 791. “In a proper case, a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown.” Singer, at 253-254. “As the Court in Singer recognized, when there has been ‘a protracted delay, certainly over a period of years, the burden is on the People to establish good cause.‘ Id. at 254. Of course, a ‘good faith determination to defer commencement of the prosecution for further investigation…will not deprive a defendant of due process even though the delay may cause come prejudice…but if commencement of the action will be delayed for a lengthy period, without good cause, the defendant may be entitled to a dismissal although there may be no showing of special prejudice.’ Id. at 254″ (emphasis added) People v. Sinagra, 2007 NY Misc LEXIS 4160,***11, at ***12 (Kings Sup Ct 2007) (Reichbach, J.). As stated above, the delay in question is thirty-one months from the receipt of notification of Ruben Alexander’s death by the N.Y.C. O.C.M.E. to the Kings County District Attorney’s Office until the defendant’s instant indictment, exclusive of awaiting the autopsy report and time that Grand Jury operations were suspended due to the COVID 19 pandemic. The Court of Appeals has already found in Staley, supra, that a time of delay consisting of thirty-one months, without good cause for such a delay, constitutes an unreasonable delay in prosecution, requiring dismissal. See also Singer, supra (dismissal warranted for three-year delay in commencing prosecution without good cause). “The primary responsibility for assuring a prompt prosecution rests with the prosecutors” (Staley, at 793) and this responsibility is not abrogated absent an “acceptable excuse or justification” (Id.). Ergo, the issue before this Court is whether the reasons cited by the People for the delay in commencing the instant prosecution, pursuant to IND-71628-23, satisfies this good cause requirement. The People contend that their inability to present the instant case to a Grand Jury because of suspended operations due to the COVID 19 pandemic is rendered academic by virtue of this Court’s exclusion of the five-month period when calculating the time of delay. However, the People also cite to the pandemic as the cause of a sizable backlog of cases and investigations pending presentation to a Grand Jury, requiring prioritization, as well as the cause of a “large turnover of employees in the private and governmental sectors” (People Memorandum of Law in Opposition to Motion to Dismiss, page 2). In addition, the People argue that the change in the New York State Criminal Procedure Law in 2020, overburdened prosecutorial agencies, adding to the number or resignations and in particular required the reassignment of the instant case multiple times. Despite that, the change in discovery and bail laws in 2020 did not come as a surprise to prosecuting agencies, including the Kings County District Attorney’s Office. Nonetheless, these are serious concerns and logistical issues for the Kings County District Attorney’s Office, as well as other law enforcement agencies statewide, yet this is not a basis upon which criminal defendant’s constitutional rights can be abrogated. As such, this Court finds that the existence of a backlog of cases, the decision to prioritize other cases ahead of the instant indictment, and a lack of staff for a penumbra of reasons do not constitute good cause for a delay in commencing the instant prosecution. The People also list a loss of records and the need to reorder such records to proceed with the instant case. Law office failure is also unpersuasive to constitute good cause for the delay. CONCLUSION WHEREFORE, this Court finds an unreasonable, inexcusable delay in commencing prosecution of the defendant pursuant to the instant indictment. As such, the defendant’s motion pursuant to People v. Singer, 44 NY2d 241 and C.P.L. §30.20 is hereby GRANTED, and IND-71628-23 is DISMISSED AND SEALED. This Order is hereby stayed for forty-five (45) days for the People to determine whether to exercise their right to appeal. This constitutes the decision, opinion and Order of this Court. Dated: July 26, 2023
