DECISION AND ORDER The defendant, who is charged with Criminal Possession of a Weapon in the Second Degree (PL §265.02) and other related charges, moves for various relief in an omnibus motion. The Court finds as follows: I. Timeliness The People urge this Court to summarily deny the defendant’s omnibus motion as it was filed outside of the 45 days mandated by CPL §255.20(1) without any good cause (see People’s Motion at 32). Pursuant to CPL §255.20(1), all pre-trial motions must be filed within 45 days of arraignment (arraignment on the indictment in a felony case). Extensions of the 45-day rule are permitted where a defendant, with due diligence, could not have previously been aware of the grounds upon which to make the motion or upon a showing of “good cause” why the motion could not have been made within the specified time frame (CPL §255.20[3]; compare People v. Anderson, 201 AD2d 658, 659 [2d Dept, 1994] (defendant’s motion properly denied; motion “was made nearly five months after the Huntley hearing was conducted, and defense counsel failed to offer an adequate explanation as to why the request could not have been made sooner”) with People v. Walker, 19 Misc3d 444 [Sup. Ct. Monroe Co. 2008] (motion properly entertained two years after the defendant’s arraignment where Grand Jury testimony was disclosed on the eve of trial; compare People v. Wisdom, 23 NY3d 970 [2d Dept, 2014] (the defendant’s motion to dismiss the indictment on the grounds that the Grand Jury proceedings were fundamentally defective was not untimely, even though it was filed after the prosecution presented its proof at trial, where the defendant was not aware of the operative facts supporting his challenge to the Grand Jury proceedings until after the prosecution presented its case) with People v. Rahmen, 302 AD2d 408, 409 [2d Dept, 2003] (“the Supreme Court should have summarily denied the defendant’s motion pursuant to CPL 210.40 (1), as he failed to show good cause for making the motion more than 45 days after his arraignment”); cf People v. Little, 83 Misc3d 1213[A] [Sup. Ct. Kings Co. 2024] (motion deemed untimely when filed 68 days after the filing of the People’s certificate of compliance)). The purpose of the 45-day rule is “to require a defendant to prepare for trial promptly and to avoid delay of trial because of pre-trial motions made by a defendant on the eve of trial solely for the purpose of delaying the trial” (People v. Johnson, 112 Misc2d 578, 579 [Co. Ct. Johnson Co. 1982]). Here, the defendant was arraigned on the felony indictment on July 29, 2024. Forty-six days later, on August 28, 2024, the defense filed the instant omnibus motion. Defense counsel provides no explanation in their motion papers for the late filing. However, under the circumstances of this particular case, the Court will consider the defendant’s motion, as it was only one day outside of the 45-day time period set forth in CPL §255.20. II. Inspection of the Grand Jury Minutes The Court has conducted an in-camera inspection of the minutes of the Grand Jury proceedings, including the supplied exhibits, and denied the defense motion to dismiss the indictment in full (see CPL §210.20[1][b]; see CPL §210.20[1-a]; see CPL §210.30). “[A] Grand Jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense … and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense” (CPL §190.65[1]). “Legally sufficient evidence” is defined as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” (CPL §70.10[1]). For purposes of Grand Jury proceedings “competent evidence” is evidence admissible pursuant to CPL §190.30 (“Except as otherwise provided in this section, the provisions of article sixty, governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to Grand Jury proceedings”); see CPL Art. 60; see also People v. Swamp, 84 NY2d 725, 730 [1995]). In particular, hearsay is inadmissible in the Grand Jury unless it falls under one of the exceptions to the rule or one of the specific exceptions enumerated in CPL §190.30 (see e.g., People v. Pelchat, 62 NY2d 97 [1984]). When assessing the sufficiency of the evidence before a Grand Jury, courts must evaluate “whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction” (People v. Mills, 1 NY3d 269, 274-275 [2003]). A. Detective Linder’s Testimony Here, the defendant argues that the People failed to establish the charged offenses through competent evidence (see Defense Motion at §I). Specifically, the defendant argues that Detective Vincent Lindner’s “testimony invaded the province of the jury when he was asked to opine as to what was depicted in video evidence” (Defense Motion at 24). The defendant points to four issues in particular: (1) the detective was not a witness to the incident; (2) “the detective does not make an identification from one image, instead drawing the vague conclusion that from video surveillance he believes it to be” the defendant; (3) “the detective cannot express any one clear factor that makes him think” it is the defendant in the videos; and (4) lack of corroboration of the identification (see Defense Motion at 30). This Court disagrees. The Grand Jurors in this case were given the opportunity to view a compilation of the surveillance videos recovered in the case and referenced by the witnesses, evaluate it, and decide for themselves what and who it showed (see People’s Grand Jury Exhibit 25 — surveillance compilation video; see also People v. Russell, 79 NY2d 1024 [2d Dept, 1992] (the trial court did not abuse its discretion in allowing lay witnesses, who did not witness the bank robbery, to identify the defendant as the person depicted in surveillance photographs);contra People v. Peralta, 22 Misc3d 1130[A] (Sup. Ct. Qns. Co. 2009] (the officer who identified the defendant in the surveillance video was not a witness to the crime; the People did not play the video for the jurors and never elicited any testimony to establish the authenticity of the video)). The jurors were also provided a picture of the defendant, allowing them to compare the photo to the video and determine for themselves if the person in the video was in fact the person in the photo (see People’s Grand Jury Exhibits 11, 12). Notably, the surveillance video provided multiple angles and vantage points of the person in question, sometimes for extended periods. Moreover, when Detective Lindner testified that he identified the defendant from the surveillance video, he noted that he had previously interacted with the defendant on numerous occasions, where he had an opportunity to observe the defendant’s face and build (see Grand Jury Minutes — July 1, 2024, at 33; contra People v. Gibson, Ind. 0065-2020 [J. Yearwood, Nov. 10, 2020] (detectives identification testimony improper where testimony did not establish any familiarity with the defendant). Contrary to what the defense argues, Detective Lindner also testified that he recognized the defendant’s facial features, long hair, and short stature in the video (see Grand Jury Minutes — July 1, 2024, at 33-34). Additionally, here, unlike many of the cases cited by the defense, there was no commentary by the witness while the video played (see e.g., People v. Lewis, 225 AD3d 896 [2d Dept, 2024](police officers should not have been permitted to narrate and offer their opinions on portions of surveillance video; there was no basis for the two officers to testify, among other things, that defendant could be seen on the video “inside the [vehicle]” and “ reaching into the back seat” of the vehicle); see e.g., People v. Ramos, 218 AD3d 495, 496 [2d Dept, 2023] (“the detective improperly narrated the video and the detective’s interpretation of the video, which was not necessarily supported by the video itself”); see e.g., People v. Griffith, Ind. 70856-2023 [J. Fabrizio, July 12, 2023] (testimony of officers who provided a narrative of events depicted in the video, where the officers were not witnesses, was improper); see e.g., People v. Flores, Ind. 2169-2019 [J. Lewis, Feb. 19, 2020] (running “play by play” commentary by detective regarding the actions and conduct of the defendant which could be observed directly by the grand jurors interfered with the role of the Grand Jury and served no legitimate purpose)). Instead, here, the jurors viewed the video almost entirely uninterrupted. Moreover, the People elicited testimony about the authenticity of the videos and properly instructed the jurors. As to Detective Linder’s testimony that he interacted with the defendant “numerous times over the last ten years,” the Court does not find this to be prejudicial or, as the defense argues, a “suggestion that Demetrius Armstrong is a bad person who has committed crimes since early childhood,” as the Detective makes no reference to arrests or interactions in a negative capacity. (Grand Jury Minutes — July 1, 2024, at 33; Defense Motion at 40). Therefore, this Court finds that Detective Lindner’s testimony was not impermissible, and it did not render the Grand Jury proceedings defective. B. Connection Between the Defendant and the Charged Offenses The defendant argues that no connection was made in the Grand Jury between the defendant and the events of April 20, 2022 (see Defense Motion §I). The Court disagrees. The extensive video surveillance played for the Grand Jurors, which included footage of the suspect entering and exiting the same address the defendant provided the detective as his home address, established a sufficient connection between the defendant and the charged offenses. This Court finds no issue under these circumstances with the lack of eyewitness testimony or DNA evidence as proposed by the defense (see Defense Motion at 44). C. Count Seven — Criminal Use of a Firearm in the First Degree As to Count Seven, charging Criminal Use of a Firearm in the First Degree (PL §265.09[1][A]), the Court finds that the charge cannot be sustained. “A person is guilty of criminal use of a firearm in the first degree when he commits any class B violent felony offense as defined in…section 70.02[a] and he…possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged” (PL §265.09[1][A]). Here, the top count of the indictment is a C violent felony. As no B violent felony is charged in the indictment, Count Seven cannot be sustained and is therefore dismissed (see CPL §210.20[a][b]). D. Remaining Counts Upon review of the evidence presented, including the supplied exhibits, this Court finds that there was legally sufficient evidence to support the remaining charged offenses (see Defense Motion at 44; CPL §190.65; see People v. Jennings, 69 NY2d 103 [1986]; see People v. Swamp, 84 NY2d 725 [1995]) The Court further finds that the Assistant District Attorney properly instructed the Grand Jurors on the applicable law (see People v. Calbud, Inc., 49 NY2d 389 [1980]; see People v. Lyons, 391 AD2d 508 [2d Dept, 2002]). The instructions set forth the essential elements of the crimes to be considered by the Grand Jurors and did not impair the integrity of the Grand Jury. E. Release of Grand Jury Minutes In arriving at the decision regarding the Grand Jury presentation, the Court finds that release of the unredacted Grand Jury minutes to the defendant is not “necessary to assist the court in making its determination on the motion” (see CPL §210.30[3]). The Court, therefore, declines to order release of the Grand Jury minutes to the defendant, beyond what they are entitled to pursuant to CPL §245.20[1][b]). III. Motion to Dismiss Pursuant to People v. Singer The defendant moves to dismiss the indictment due to prosecutorial delay in bringing these charges, claiming that the delay deprived him of his due process right to a speedy trial under the New York State Constitution and CPL §30.20 (see Defense Motion at §II). On or about April 21, 2022, Detective Lindner reviewed video surveillance related to the April 20, 2022, shooting in this case. Upon reviewing the video, the detective recognized the individual in the video to be Demetrius Armstrong (see People’s Motion at 11). On June 2, 2022, Detective Bostic was shown still images from the video surveillance and confirmed that the individual depicted in the stills was the defendant (id. at 13). An I-Card was issued that same day (id. at 15). The defendant, however, was not arrested until June 27, 2024 (id. at 28). As such, the defendant asserts that the People did not have a good faith basis to delay charging him and that the resulting 26-month pre-indictment delay prejudiced him (see Defense Motion at
57-59). A defendant’s right to a speedy trial has long been protected. The Sixth Amendment seeks to ensure that defendants are not incarcerated indefinitely and that they are tried when evidence is likely to be fresh and witness memories sharp. “Excessive delay presumptively compromises the reliability of a trial in ways neither party can prove or, for that matter, identify” (Doggett v. United States, 505 US 647, 655 [1992]). In New York, however, the right to a speedy trial is broader, and the speedy trial statute has been interpreted as extending to unduly delayed indictments (see People v. Singer, 44 NY2d 241, 253 [1978]). Thus, an unjustified delay in prosecution may rise to a due process violation that must be remedied by dismissal. The Appellate Court in People v. Taranovich (37 NY2d 442, 445 [1975]) enumerates the factors that the court must consider when an unconstitutional delay in prosecution is alleged. Those Taranovich factors are: (1) the extent of the delay; 2) the reason for the delay; 3) the nature of the underlying charge; 4) whether there has been an extended period of pre-trial incarceration; and 5) whether there is an indication that the defense has been impaired. When deciding the merits of a defendant’s claim, “no one factor or combination of the factors…is necessarily decisive or determinative of the [prompt prosecution claim], but rather the particular case must be considered in light of all the factors as they apply to it” (People v. Wiggins, 31 NY3d 1 [2018]). In considering each factor, the Court finds as follows: 1. The Extent of the Delay As to the first factor, the extent or duration of the delay, although “there is no specific length of time that automatically results in a due process violation,” longer delays are more likely to inflict greater harm (People v. Johnson, 39 NY3d 92, 97 [2022], citing Taranovich, supra). Although the length of the delay is significant, the Court of Appeals has consistently declined to establish a definitive time limit beyond which a criminal prosecution cannot proceed (Compare People v. Vernace, 96 NY2d 886 (2001) (People established good cause for a seventeen-year pre-indictment delay) with People v. Jones, 80 Misc3d 467 [Sup. Ct. Kings Co. 2023] (delay of 31 months between death of victim and indictment was unreasonable)). As such, while 26 months is considerable, that alone does not a due process violation make (see e.g., People v. Bonsauger, 91 AD2d 1001 [2d Dept, 1983] (2-year delay)). 2. The Reason for the Delay Next, the court must consider the reasons for the People’s delay. Legitimate excuses for delay may include: overcoming a suspect’s efforts to prevent prosecution by leaving the country, using different names and suborning witness perjury (see People v. Rivera, 226 AD3d 929, 931 [2d Dept 2024]); gathering additional evidence and forensic testing (see People v. Wald, 215 AD3d 497 [1st Dept 2023]; utilizing new technologies (see People v. Decker, 13 NY3d 12, 13-15 [2009]); and exhausting all possible leads (People v. Grant, 82 Misc3d 991 [Sup. Ct. Kings Co. 2024]). Here, the People’s papers have laid out the extensive efforts made by the New York City Police Department to apprehend the defendant. This includes computer checks to ascertain the latest information on the defendant, surveillance of the defendant’s home and places he was known to frequent, contacting the defendant’s family members and probation officer, and obtaining a trap and trace warrant, among other efforts (see People’s Motion
