Opinion
Ind. No. 70894-23
06-27-2023
The PEOPLE of the State of New York v. Delvin REAVES, Defendant.
The defendant, who stands charged with one count each of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(3)), Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(1)), Criminal Possession of a Firearm (P.L. § 265.01-B(1)), Obstructing Governmental Administration in the Second Degree (P.L. § 195.05), Criminal Possession of Cannabis in the Third Degree (P.L. § 222.30(1)), and Unlawful Possession of Cannabis (P.L. § 222.25) , has moved to dismiss the indictment for a violation of C.P.L. § 30.30(1)(a). The People have opposed.
Although the indictment refers to this offense as "Criminal Possession of Cannabis," the statute is titled "Unlawful Possession of Cannabis," and this is a non-criminal offense. P.L. § 222.25.
After careful review of the defendant's motion, the People's response, the procedural history of the case, and all relevant legal authority, the Court makes the following rulings.
January 6, 2022 — January 11, 2022
On January 6, 2022, this case commenced with the filing of the felony complaint in criminal court. See C.P.L. § 1.20 (17) ; see also C.P.L. § 100.05 ; People v. Lomax , 50 NY2d 351 (1980). Therefore, the People had 181 days in which to announce their readiness for trial. See C.P.L. § 30.30(1)(a). "[O]nce the defendant has shown the existence of a delay greater than six months, the burden of proving that certain periods within that time should be excluded falls upon the People." People v. Berkowitz , 50 NY2d 333, 349 (1980). See also People v. Luperon , 85 NY2d 71 (1995).
The case was adjourned for grand jury action to January 11, 2022. On January 7, 2022, the People submitted the evidence swabs taken from the firearm to the Office of the Chief Medical Examiner (OCME), Department of Forensic Biology, for DNA testing and analysis.
Although the People were not ready for trial, the People have established their entitlement to an exclusion under C.P.L. § 30.30(4)(g)(i). That subsection excuses the People from being ready for trial due to "the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period[.]" C.P.L. § 30.30(4)(g)(i). The application of this exclusion "is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction." People v. Price , 14 NY3d 61, 64 (2010). Consequently, time is excludable under this subsection "only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution." Id.
The appellate courts have interpreted the statutory exclusion to apply to delays caused by "the unavailability of DNA test results ... so long as the People exercised due diligence to obtain the results." People v. Gonzalez , 136 AD3d 581, 582-83 (1st Dept. 2016) (citing People v. Williams , 244 AD2d 587 (2d Dept. 1997) ); see also People v. Robinson , 47 AD3d 847 (2d Dept. 2008).
Nor is the excludability of the statute limited to evidence needed for trial. Although "the time taken up by Grand Jury proceedings is generally chargeable to the prosecution" it may be excluded "on statutory grounds such as the unavailability of material evidence or exceptional circumstances." People v. Daniels , 217 AD2d 448, 450 (1st Dept. 1995). See also People v. Morgan , 259 AD2d 771 (3d Dept. 1999) ; People v. Pharr , 204 AD2d 126 (1st Dept. 1994) ; People v. Lashway , 187 AD2d 747 (3d Dept. 1992).
In this case, the defendant is charged with the possession of a loaded firearm which was recovered from the glove compartment of the vehicle in which the defendant had been seated as a passenger; another individual had been seated in the driver's seat. The People have alleged that DNA evidence connecting the defendant to the firearm was material to their presentation of the case in the grand jury, and acted diligently to obtain that evidence. Therefore, the People have established their entitlement to the exclusion under C.P.L. § 30.30(4)(g)(i), and so this time period is excluded.
0 days chargeable.
January 11, 2022 — March 31, 2022
On January 11, 2022, the People had not presented the case to the grand jury. The case was adjourned to March 31, 2022 for grand jury action. The People had not yet received the results of the DNA testing on the swabs of the firearm, and so did not present their case to the grand jury during this time period. This adjournment is excluded, for the reasons outlined above, as a reasonable period of time in which the People could obtain the DNA results and move the case forward.
0 days chargeable.
March 31, 2022 — May 10, 2022
On March 31, 2022, the People had not presented the case to the grand jury, and the case was adjourned to May 10, 2022 for grand jury action. Although the People exercised initial diligence in promptly submitting the request for the evidence to be examined, the People then took no further action to try to obtain the DNA results in a timely fashion. Lesher Aff. ¶ 11 (June 23, 2023).
C.P.L. § 30.30(4)(g)(i) excludes delays for the prosecution to obtain material evidence when the prosecution's efforts are diligent and when there are "reasonable grounds" to believe the evidence will be available within a "reasonable period." While the initial adjournment from January 11, 2022 to March 31, 2022 may be deemed a "reasonable period," the People's inaction during this time renders any further delay unreasonable. The exclusion of 30.30(4)(g)(i) is "limited to instances in which the prosecution's inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it." People v. Washington , 43 NY2d 772, 774 (1977) ; see also People v. Rahim , 91 AD3d 970 (2d Dept. 2012). The People engaged in no activity to ensure that they would be able to move the case forward by March 31, and so the continued delay is chargeable against the People.
On April 27, 2022, the People received the results from OCME, and filed a motion to compel the defendant to submit to the taking of a buccal swab on May 5, 2022. The Court finds that this motion was timely made. See C.P.L. §§ 255.10(1)(c) ; 255.20(1). Once the People filed their motion, the remainder of the adjournment is excluded under C.P.L. § 30.30(4)(a). See People v. Barnes , 160 AD3d 890, 890 (2d Dept. 2018).
35 chargeable days.
May 10, 2022 — June 23, 2022
On May 10, 2023, a briefing schedule was set and the case was adjourned to June 23, 2022 for decision on the People's motion to compel. For the reasons stated above, this adjournment is excluded under C.P.L. § 30.30(4)(a).
0 chargeable days.
June 23, 2022 — September 15, 2022
On June 23, 2022, the Court granted the People's motion to compel and the case was adjourned for grand jury action to September 15, 2022. The defendant was swabbed on July 7, 2022. Because the People did not have the results of the comparison between the defendant's DNA and the DNA found on the swabs of the firearm, the People did not present the case to the grand jury during this time.
Where the People have not acted with sufficient diligence to obtain their evidence, the delay caused by the testing of the defendant's DNA sample is not excluded. See People v. Clarke , 28 NY3d 48 (2016). In this case, the People's diligence appears to have ended when they requested testing of the initial evidence swabs, as the People apparently made no efforts to follow up on that process. Although the defendant was swabbed in a timely fashion, there is no indication when the People submitted the defendant's swab to OCME for testing. Neither party has provided documentation of any diligent efforts by the People to obtain the comparison results during this time to the Court, and "[i]t is the responsibility of the People to be cognizant of the progress of a particular case." People v. Gonzalez , 136 AD3d 581, 583 (1st Dept. 2016) ; see also People v. Wearen , 98 AD3d 535 (2d Dept. 2012). Because it is the People's burden to establish a record in the first instance, see People v. Cortes , 80 NY2d 201 (1992), this period is chargeable against the People. See People v. Titus , 95 AD3d 1042 (2d Dept. 2012).
53 chargeable days.
September 15, 2022 — November 3, 2022
On September 15, 2022, the People had not received the results of the comparison and had not presented the case to the grand jury. The case was adjourned to November 3, 2022 for grand jury action. On September 29, 2022, the People received the results of the comparison from OCME. Thereafter, the People inexplicably delayed presenting the case to the grand jury. The People have not established a sufficient basis to warrant an exclusion of any of this adjournment, and so the entire adjournment is chargeable against the People.
49 chargeable days.
November 3, 2022 — December 6, 2022
On November 3, 2022, the People had not presented the case to the grand jury and the case was adjourned to December 6, 2022 for that purpose. The People were not ready for trial and have not established the applicability of any exclusion under C.P.L. § 30.30(4) to this period, and so this adjournment is chargeable against the People.
33 chargeable days.
December 6, 2022 — January 12, 2023
On December 6, 2022, the People had not presented the case to the grand jury and the case was adjourned to January 12, 2023 for that purpose. The People were not ready for trial and have not established the applicability of any exclusion under C.P.L. § 30.30(4) to this period, and so this adjournment is chargeable against the People.
37 chargeable days.
January 12, 2023 — March 3, 2023
On January 12, 2023, the People had not presented the case to the grand jury and the case was adjourned to February 23, 2023 for that purpose. On January 17, 2023, the Court filed a motion to terminate prosecution pursuant to C.P.L. § 180.85. A motion pursuant to this section is not excludable as motion practice under C.P.L. § 30.30(4)(a). C.P.L. § 180.85(6). On February 15, 2023, the grand jury returned the instant indictment against the defendant and the case was adjourned to March 3, 2023 for arraignment on the indictment. The People were not ready for trial during this period, and so this time is chargeable against the People.
On March 2, 2023, the People certified compliance with their discovery obligations as required by C.P.L. § 245.50(1), and announced their readiness for trial. Included in the discovery served on the defendant were minutes of witness testimony for three of the six witnesses who testified before the grand jury. The People are required to disclose all witness transcripts to the defendant as part of the automatic discovery required by Article 245. C.P.L. § 245.20(1)(b). However, the statute contemplates the disclosure of the transcripts themselves, and not the raw notes taken by the stenographer in the grand jury. Until the stenographer has transcribed his or her notes, no transcript exists, and the People cannot disclose what does not exist. Because there was then not a pending motion to inspect the grand jury minutes when the People announced their readiness for trial, there was no impediment to the case moving forward at that time. Compare People v. McKenna , 76 NY2d 59 (1990). Therefore, the § 30.30 clock stopped on March 2, 2023.
49 chargeable days.
March 3, 2023 — May 4, 2023
On March 3, 2023, the defendant was arraigned on the instant indictment, and the case was adjourned to May 4, 2023 for the Court to review the grand jury minutes. The time during which a motion to inspect and dismiss under C.P.L. § 210.30 is excludable as motion practice. The People disclosed the outstanding witness testimony to the defendant, along with a supplemental certificate of compliance, on March 30, 2023, and provided the grand jury minutes to the Court on March 31, 2023. This adjournment is excludable under C.P.L. § 30.30(4)(a).
0 chargeable days.
May 4, 2023 — June 8, 2023
On May 4, 2023, the Court issued its decision on the grand jury proceedings, finding that the indictment was supported by legally sufficient evidence and that the presentation before the grand jury was proper. A motion schedule was set, and the case was adjourned to June 8, 2023 for the instant decision. This adjournment is excludable under C.P.L. § 30.30(4)(a).
Conclusion
Based on the foregoing, the Court finds 256 days chargeable against the People. Consequently, the People have exceeded their allowable time under C.P.L. § 30.30(1)(a) of 181 days, and the defendant's motion to dismiss is granted.
The foregoing constitutes the Decision and Order of the Court.