Opinion
2014-09-25
The PEOPLE of the State of New York, Appellant, v. Demetrius LATHON, Defendant–Respondent.
Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), for appellant. Center For Appellate Litigation, New York (Robert S. Dean of counsel), and Kaye Scholer LLP, New York (Aaron H. Levine of counsel), for respondent.
Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), for appellant.Center For Appellate Litigation, New York (Robert S. Dean of counsel), and Kaye Scholer LLP, New York (Aaron H. Levine of counsel), for respondent.
Order, Supreme Court, Bronx County (Darcel D. Clark, J.), entered on or about October 9, 2012, which granted defendant's CPL 30.30 motion to dismiss the indictment, unanimously reversed, on the law, the motion denied, the indictment reinstated and the matter remanded for further proceedings.
Defendant's speedy trial motion turns on the preindictment period from April 15, 2011 through August 15, 2011, during which the People were awaiting the results of DNA testing of samples taken from defendant and his codefendant pursuant to a court order. Under the circumstances of this case, this period was excludable as a “delay occasioned by exceptional circumstances” resulting from the “unavailability of evidence material to the people's case” (CPL 30.30[4][g][i]; see People v. Robinson, 47 A.D.3d 847, 848, 850 N.Y.S.2d 533 [2d Dept.2008], lv. denied10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258 [2008] ). The fact that the automobile presumption (Penal Law § 265.15 [3] ) was available to the People to establish defendant's possession of the pistol did not mean that the DNA analysis was not “material” to the People's case, since defendant had expressed his intention to testify before the grand jury for the purpose of disclaiming any connection with the pistol and rebutting the presumption ( see People v. Verez, 83 N.Y.2d 921, 924, 615 N.Y.S.2d 306, 638 N.E.2d 951 [1994] ). Moreover, the materiality and necessity of the DNA analysis had already been determined in the court order compelling defendant and his codefendant to provide saliva samples, and defendant does not contend that the People failed to act diligently to obtain the DNA analysis. SWEENY, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, JJ., concur.