People v. Grant

DECISION and ORDER Calvin Grant (hereinafter: defendant), is charged, pursuant to Kings County Indictment IND-02634-19, with the crime of Murder in the Second Degree (Penal Law [hereinafter: P.L.] §125.25[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. The People oppose the defendant’s instant motion in its entirety and this Court Ordered a hearing pursuant to People v. Singer, 44 NY2d 241 (1978) (hereinafter: Singer Hearing). Statement of Facts as Alleged & Procedural History The People allege that on April 11, 1992, the defendant shot and killed Stacey Joyner (hereinafter: decedent) on the rooftop of 23-25 New Lots Avenue, in Kings County. The decedent was found at the locus in quo by security guards who responded to the sound of gun shots. Police recovered ballistic evidence, but were unable to recover any additional forensic evidence, such as latent fingerprints, at that time. In addition, there was no surveillance video of the shooting. On April 11, 1992, detectives learned that the defendant was alleged to be in possession of a firearm, belonging to Antoine Smith, which was the same caliber as the murder weapon. Although witnesses observed the defendant in the vicinity of the homicide on April 11, 1992, no witness observed the defendant on the rooftop near or during the time of the homicide. The defendant was interviewed by police on April 12, 1992, and admitted to possession of Antoine Smith’s firearm, but did not make any inculpatory statements concerning the homicide. Rather, the defendant admitted taking the firearm from Smith and selling it for drugs. Despite police attempts to identify and locate additional witnesses, none were found. As a result, no police action was taken at that time. At autopsy a post-mortem kit was performed of the decedent’s body, and subsequently semen was detected on oral swabs of the decedent. No additional forensic testing was performed at that time. Approximately twenty-six years later, in February of 2018, Det. Dewhurst was contacted by an unnamed employee of the Office of the Chief Medical Examiner (hereinafter: O.C.M.E.), who informed the detective that Forensic Biology Laboratory at the O.C.M.E. was in possession of biological samples collected in the instant case that were untested for DNA. Det. Dewhurst retrieved the original file from the archives of the New York City Police Department’s (hereinafter: N.Y.P.D.) 73 Precinct Detective Unit (hereinafter: 73 P.D.U.) and attempted to locate the original witnesses. On March 23, 2018, the Office of the Kings County District Attorney (hereinafter: K.C.D.A.O.) formally requested that the O.C.M.E. test the recovered semen-positive oral swab to determine if a DNA profile could be generated. The O.C.M.E. issued a report on June 20, 2018, finding a discernable DNA profile, labeled “Male Donor A”. Thereafter, on June 25, 2018, the O.C.M.E. received notification that the DNA labeled “Male Donor A” developed from the semen-positive oral swab, collected from the decedent post-mortem, matched the DNA for the defendant which was on file in the State DNA Index System (hereinafter: state DNA database). The defendant’s DNA profile had been uploaded to the state DNA database following a conviction for an unrelated offense in 2004. On January 24, 2019, the defendant was apprehended on an unrelated matter and, after being re-interviewed and providing the same information as when he was initially interviewed in 1992, was arrested on the instant matter. Initially, this defendant was indicted by a Kings County Grand Jury, pursuant to Kings County Indictment: IND-00327-19, which was filed on January 24, 2019, for the charge of Murder in the Second Degree (P.L. §125.25[1]). After arraignment on that indictment, on April 6, 2019, this Court dismissed said indictment for defects in the Grand Jury presentation. With leave of this Court, the case was re-presented to a different Grand Jury and, on May 7, 2019, the defendant was indicted for a second time, pursuant to Kings County Indictment: IND-02631-19. The defendant was arraigned on IND-02631-19 on June 14, 2019, at which time the defendant pled not guilty to the sole count on the indictment. On January 19, 2023, counsel for the defendant filed a motion pursuant to Singer, (supra), seeking dismissal of the instant indictment based upon unreasonable pre-indictment delay. The People opposed the defendant’s motion and this Court Ordered a hearing. This Court conducted said hearing on July 25, September 14, and November 9, 2023. The People called three witnesses at the hearing: Dr. Craig O’Connor (hereinafter: Dr. O’Connor), Deputy Director of the Laboratory for the O.C.M.E.; Detective Robert Dewhurst (hereinafter: Det. Dewhurst), a thirty-one-year member of the N.Y.P.D. assigned to the Cold Case Squad; and Criminalist Jeffrey Suckow (hereinafter Criminalist Suckow), a civilian employee of the N.Y.P.D. assigned to the N.Y.P.D. Lab’s Firearms Analysis Section. The defense did not call witnesses, but did cross-examine the People’s witnesses. The parties then argued the motion orally and supplemented that argument with written submissions. For the reasons stated below, defendant’s motion to dismiss the instant indictment pursuant to Singer, is hereby GRANTED. FINDINGS OF FACT Dr. Craig O’Connor testified as follows: Dr. O’Connor began his career with the O.C.M.E. in May of 2008 as a Criminalist Level II, analyzing crime scene evidence. Currently, he is assigned to the Department of Forensic Biology as the Deputy Director of the Laboratory, a position that he assumed in August of 2022. In that role Dr. O’Connor supervises the case-work process, the laboratory, and manages assistant directors and criminalists. Dr. O’Connor also serves as an DNA Technical Leader, responsible for supervising the technical process, bringing techniques online, assuring procedures meet accreditation standards, educating and training employees, and overseeing quality control within the laboratory. Dr. O’Connor received a Bachelor of Science in Physiology and Neurobiology, a Master’s Degree in Science, and a Ph. D in Genetics and genomics. In addition to this formal education, Dr. O’Connor has undergone numerous internal and external training sessions and workshops on topics relevant to his professional area of practice. Dr. O’Connor is a member of several professional organizations and has personally performed DNA analysis thousands of times, having authored DNA analysis reports and reviewed reports by other analysts, hundreds of thousands of times. As Deputy Director of the Laboratory, Dr. O’Connor is familiar with not only the current protocols and procedures of the Forensic Biology Laboratory of the O.C.M.E., but historic methods as well. Prior to the instant hearing the doctor has testified, approximately eighty-five times, about the O.C.M.E.’s procedures and DNA analysis in courts throughout New York, New Jersey and Connecticut, in state and federal jurisdictions. Dr. O’Connor was deemed an expert witness at the hearing, in the area of forensic DNA analysis, the statistical significance of DNA testing and the history of DNA testing, without objection by the defense. According to Dr. O’Connor’s testimony, the Serology Department of the O.C.M.E. became the Department of Forensic Biology in 1992 when it began DNA testing¹. In April of 1992, the O.C.M.E. began using the HLA-DQ Alpha method of DNA testing and analysis. This method resulted in a DNA profile which could be compared against known individuals to determine if the profiles matched one-another or not. Since 1992, as DNA testing technology evolved, analysts can utilize smaller amounts of a sample to generate a DNA profile. In 1995 or 1996 the O.C.M.E. began to employ the Restriction Fragment Link Polymorphism (hereinafter: RFLP) method of DNA Analysis² and in 1996 transitioned to the standard Polymerase Chain Reaction (hereinafter: PCR) based short-tandem repeat testing, which is commonly used today. As of 1998 the technology utilized by the O.C.M.E. for DNA testing and analysis evolved to the point where they were capable of generating DNA profiles from saliva samples, where previously blood or other more densely concentrated bodily fluids were required. This increase sensitivity in the testing process allowed for the use of abandonment samples or pseudo-exemplars to generate known DNA profiles. The Federal Bureau of Investigations did not establish the Combined DNA Database (hereinafter: CODIS) until 2000 to record identified DNA profiles for comparison to unknown samples. No other databank was in existence until this time. Dr. O’Connor then testified that the O.C.M.E. received items of evidence for testing related to the homicide death of the decedent on April 11, 1992, and the Forensic Biology Laboratory assigned O.C.M.E. Forensic Biology Number: FB92-0624³ to that evidence, for identification purposes. Testing of oral swabs taken from the decedent revealed the presence of semen. At the time of testing, since there was no known sample to compare the semen-positive oral swab to, HLA-DQ Alpha testing was not performed on the sample to generate a DNA profile. Dr. O’Connor did testify that if a known sample was taken from the defendant in 1992 and analyzed using HLA-DQ Alpha testing, the O.C.M.E. would have been able to determine that the defendant’s DNA profile matched the semen-positive oral swab. In 2018, the O.C.M.E. received a request that additional testing be performed on the semen-positive oral swab. According to a report contained within the O.C.M.E. casefile, dated June 20, 2018, DNA testing was performed and a 19-locus DNA profile, titled “Male Donor A” was identified. The DNA profile for “Male Donor A” was then uploaded into the CODIS database and on June 25, 2018, the O.C.M.E. was notified that the DNA profile matched the known DNA profile of the defendant, a convicted offender on record in the state DNA database. According to the notification, the defendant’s DNA profile was previously uploaded to the state DNA database in 2004. The O.C.M.E. does not have direct access to the state database, this is a system operated by the New York State Department of Criminal Justice Services (hereinafter: D.C.J.S.). As such, the O.C.M.E. is unable to search that database and must await notification of any matches to DNA profiles on record, after such matches are identified by D.C.J.S. Subsequently, on March 21, 2019, the O.C.M.E. received a known DNA sample from the defendant for analysis and comparison to DNA profile generated from the semen-positive oral swab of the decedent. The Forensic Biology Laboratory assigned O.C.M.E. Forensic Biology Number: FBS19-01227⁴ to the sample, for identification purposes. Upon comparison of the sample identified as FBS19-01227 to the evidence identified as FB92-0624, in a report dated April 22, 2019, the O.C.M.E. determined that the defendant’s DNA profile matched the DNA profile of “Male Donor A”. Dr. O’Connor noted in his testimony, that had HLA-DQ Alpha analysis been performed on the semen-positive sample in 1992, it would not have been allowed to be uploaded in the CODIS database, when that system became operational, because HLA-DQ Alpha utilized techniques and markers that are not compatible with the CODIS database. Rather, CODIS requires STR based profiles, such as RFLP generated profiles, which were available as of 1996. The doctor also noted that the O.C.M.E. does not have sufficient logistical resources to automatically test samples that were previously tested using earlier technology or untested, due to the sheer volume of cases and limited personnel, when updated techniques or protocols become operational. Such testing must be requested. Detective Robert Dewhurst testified as follows: At the time of the instant hearing Det. Dewhurst had been a member of the N.Y.P.D. for thirty-one-years, being assigned to the Cold Case Squad for the last fourteen years of his police career. The Cold Case Squad is a citywide unit and on average a detective assigned to that squad handles a caseload of approximately thirteen to seventeen cases. Currently, there are twelve to fourteen detectives assigned to the N.Y.P.D.’s Cold Case Squad. Det. Dewhurst testified that there are approximately six-thousand unsolved homicides in the City of New York from calendar year 1992 to present. In order for a case to investigated by the Cold Case Squad the case, whose leads were previously exhausted, would come to the squad’s attention from a previously assigned detective or by prompt of a decedent’s family member or other interested party. Sometime in February 2018, Det. Dewhurst became involved in the homicide investigation of the decedent when he received a call from an unidentified person⁵ at the O.C.M.E.’s Forensic Biology Laboratory, informing the detective that the O.C.M.E. had untested vaginal swabs from the decedent. The detective testified that approximately a day or so later, on February 15, 2018, Det. Dewhurst went to the N.Y.P.D.’s 73 P.D.U. and recovered the original case file from the homicide investigation. After receiving and reviewing the file, Det. Dewhurst determined that the matter had not been reviewed by any other Cold Case Squad detective prior to his involvement in February 2018. Based upon the detective’s review of the file, Det. Dewhurst testified⁶ that in 1992 the locus in quo was processed by the N.Y.P.D.’s Crime Scene Unit, witnesses were interviewed, and ballistic evidence was analyzed. No latent fingerprints or surveillance video was discovered, yet based upon the police investigation in 1992, the defendant was developed as a person of interest, based upon statements made by witnesses on April 11, and April 12, 1992. The defendant was interviewed by the then case detective, Detective Hutcherson (hereinafter: Det. Hutcherson) on April 21, 1992. In his statement to the Det. Hutcherson, the defendant stated that he took a gun from Antoine Smith and later sold that gun for drugs. The defendant did not make any inculpatory statements concerning the homicide of the decedent. Although several pieces of evidence collected from the crime scene and during the autopsy were not tested, such as underwear and fingernail scrapings, police determined that all existing leads were exhausted, so the police requested media attention in search of additional witnesses. No other witnesses came forward or were identified and the case remained unsolved. Based upon Det. Dewhurst’s review of the file, all leads were exhausted in 1992 and nothing more could have been done at that time. Between 1992 and 2018, the detective confirmed that no police officer or member of the district attorney’s office attempted to obtain a DNA sample from the defendant, either by consent or court order. In addition, no other potential suspects were investigated. In 2018, Det. Dewhurst re-interviewed witnesses and requested DNA testing. Ultimately, the detective was notified that a DNA profile was generated and matched the known DNA profile of the defendant. The defendant was arrested on January 24, 2019. Upon the defendant’s arrest he was interviewed by police and provided a statement consistent with his 1992 statement, admitting possession and sale of a gun for drugs, but not admitting to any involvement in the homicide. Criminalist Jeffrey Suckow testified as follows: Criminalist Suckow is a supervising criminalist, civilian employee of the N.Y.P.D. Laboratory, and has worked in the N.Y.P.D. Laboratory in various capacities since 2009, including maintaining equipment, quality assurance addressing matters related to laboratory accreditation, and internal training. Currently, Criminalist Suckow supervises the National integrated Ballistics Information Network (hereinafter: NIBIN) Team of the Firearms Analysis Section of the N.Y.P.D. Laboratory. Criminalist Suckow holds a Batchelor’s and Master’s Degree in Forensic Science and has received specialized training in the analysis of controlled substances, the examination of firearms and ballistic evidence and the proper procedure for uploading information to the National Integrated Ballistics Information Network (hereinafter: NIBIN), inclusive of NIBIN Tirage and Correlations. NIBIN encompasses the Integrated Ballistics Identification System (hereinafter: IBIS), which is used to capture and acquire images of cartridge casings that were uploaded to the cataloging system. This system then compares uploaded images of ballistic evidence, by employing an algorithm, and notifies investigators of potential matches. Criminalist Suckow has testified approximately ten times prior to the instant hearing in the courts of Kings and Queens Counties of New York State. Criminalist Suckow was deemed an expert in firearms operability and in the NIBIN system, without objection by the defense. Upon review of the ballistics reports generated from the investigation into the instant matter in 1992, Criminalist Suckow testified that two recovered shell casings were recovered and compared manually, not using the IBIS or NIBIN systems. It was the determination of the analyst that both shell casings were discharged from the same firearm. Subsequently, in 2019, microscopic comparison of the recovered shell casings was performed again, manually, with the same result by a different examiner. The shell casings were not compared to any firearms. Although the N.Y.P.D. began using the IBIS system on December 3, 1997, the N.Y.P.D. did upload images of ballistic evidence recovered from homicides, assaults and test fires from calendar years 1995 and 1996. The N.Y.P.D. transitioned to the NIBIN system sometime in the first decade of the 2000′s. Images pre-dating 1995 were not regularly uploaded into the system, however approximately 100 to 200 images are available from the time period of 1977 to 1995. Criminalist Suckow cites limited personnel and logistical issues, which impair the N.Y.P.D.’s ability to upload images of ballistic evidence recovered prior to 1995. Images from the shell casings recovered in connection with this instant homicide investigation were not uploaded into the IBIS or NIBIN systems. 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 at least fourteen years, from 2004 when the defendant’s DNA profile was uploaded to the state DNA database and available for comparison, to 2018 when the police requested DNA analysis of the semen-positive oral swab. As borne out in the testimony adduced at the hearing, the police exhausted all available leads in 1992, as such the period from 1992 to 2004 cannot be considered a period of delay as contemplated in Singer (supra) and Taranovich (supra). However, the proffered reasons why the defendant’s DNA was not tested prior to 2018, a veritable logistical impossibility due to a lack of resources at the N.Y.P.D. and the O.C.M.E., is not a legally cognizable excuse or exception resulting in the temporal exclusion of additional time beyond 2004. The underlying charge is of the most serious nature, Murder in the Second Degree (P.L. §125.25[1]), class A felony offense. The defendant has been incarcerated on this matter for approximately five years since his arrest on January 24, 2019. Yet, this Court does take into consideration that the impact of the worldwide COVID-19 Pandemic has played a considerable role in the length of this defendant’s pre-trial detention. 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 fourteen-years, from the point when the defendant’s DNA profile was available in the state DNA database for comparison to the biological material recovered at autopsy of the decedent. As stated above, although the defendant was considered a person of interest in 1992, this period of delay excludes the time from when all leads were exhausted in 1992 to the availability of the defendant’s DNA profile in 2004. 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 satisfies this good cause requirement. The government argues and the O.C.M.E. contends that it is virtually impossible, due to a lack of sufficient logistical and personnel resources, to test all biological samples for their inclusion in the CODIS system. Moreover, the N.Y.P.D. relies on similar logic when rationalizing why ballistic evidence recovered prior to 1995 cannot be regularly uploaded to the IBIS and NIBIN systems. In addition, with thousands of unsolved cases, the limited resources of the N.Y.P.D.’s Cold Case Squad can only investigate cases that are brought to their attention, while countless others go uninvestigated for decades. Although logistical constraints are practical issues and hardships faced by numerous agencies, this is not, and cannot be, a basis upon which a criminal defendant’s constitutional rights can be abrogated. As such, this Court finds neither the failure to perform DNA analysis on the semen-positive oral swab prior to 2018, nor the fact that the instant case sat dormant until an unidentified person from the O.C.M.E. contacted the N.Y.P.D. about untested evidence, constitute good cause for a delay in commencing the instant prosecution. In addition, the People fail to raise any fact that could constitute good cause, during the time period in question, necessary to justify a this delay in prosecution. 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-02631-19 is DISMISSED AND SEALED. As a result of this Court’s instant Decision and Order, the pending motion to preclude surrogate testimony is hereby rendered moot. 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: January 26, 2024