Court of Appeals Affirms Dismissal of Indictment on Speedy Trial Grounds
October 25, 2016
Mr. Nnamdi Clarke was charged in a felony complaint in November 2007 and indicted in August 2008 for attempted first-degree murder, second-degree criminal possession of a weapon, and related counts.
In a report dated February 2008, the OCME indicated that the recovered firearm contained DNA suitable for testing. Nevertheless, the People did not move to take a buccal swab from Mr. Clarke until May 2009 in order to compare his DNA with that discovered on the firearm. Mr. Clarke consented to the taking of a buccal swab, and, in November 2009, the People announced the results of the comparison test.
Mr. Clarke moved to dismiss the indictment under C.P.L. 30.30, claiming that the People should be charged with the delay caused by their failure to promptly seek a buccal swab from him given when the OCME completed its initial report on the firearm. The People claimed the delay amounted to an exceptional circumstance under C.P.L. 30.30(4)(g) and the court denied Mr. Clarke’s motion without a hearing.
The Second Department reversed, ruling that the 161-day period between when Mr. Clarke consented to a buccal swab and the People announced the reports of the comparison test in court was chargeable to them because they failed to exercise due diligence in obtaining Mr. Clarke’s DNA. With that period, the People failed to be ready for trial within six months, which required dismissal of the indictment.
In a decision dated October 25, 2016, the Court of Appeals affirmed the dismissal of the indictment, largely along the lines of the Second Department’s decision. In particular, the Court of Appeals rejected the People’s assertion that they lacked an affirmative duty to touch base with the OCME regarding the status of evidence submitted for testing.
Bill Kastin briefed and argued the case in the Second Department and the Court of Appeals.