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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 128
The People &c.,
            Appellant,
        v.
Nnamdi Clarke,
            Respondent.




          Sharon Y. Brodt, for appellant.
          William G. Kastin, for respondent.




DiFIORE, Chief Judge:
          On this appeal, we are asked to review whether the
Appellate Division erred in holding that the People were
chargeable with the period of delay of 161 days for DNA testing

                              - 1 -
                               - 2 -                            No.

after having failed to exercise due diligence in seeking
defendant's DNA exemplar in order to conduct comparative testing
with the DNA obtained by the Office of Chief Medical Examiner
(OCME) from the gun that was the subject of weapons offenses
charged in the indictment.   We hold that the Appellate Division
properly determined that the People did not exercise due
diligence in obtaining defendant's DNA exemplar and, based on
that prosecutorial inaction, the 161-day period at issue was not
excludable from CPL 30.30 speedy trial computation as an
exceptional circumstance.
           This criminal action commenced when defendant was
charged by felony complaint on November 29, 2007 in criminal
court (see People v Osgood, 52 NY2d 37, 43 [1980]).   Defendant
was arraigned on December 3, 2007 and, after a period of
preindictment delay for which defendant waived his CPL 30.30
rights, he was indicted on August 18, 2008.   Defendant was
charged with attempted murder in the first degree, criminal
possession of a weapon in the second degree, and other related
charges.
           In May 2009, almost nine months after defendant's
indictment, the People moved for an order to take an oral swab
from defendant to obtain his DNA sample for comparison with the
DNA results obtained from the swabs of the gun by OCME.1   There


     1
       The People moved for discovery under CPL 240.40 to compel
the taking of defendant's DNA sample. Generally, CPL 240.90

                               - 2 -
                               - 3 -                            No.

is no dispute that there was an OCME lab report, dated February
11, 2008, that plainly indicated that DNA was found on the swabs
from the recovered gun.   The report stated that "[f]urther
analysis could be done upon submission of a blood or saliva
sample from a suspect" and provided that such testing would
"require approximately 60 days."   Noting that his client had
"been incarcerated for some time now," defense counsel declared
his readiness for trial and argued that the ensuing delay for the
DNA testing should be chargeable to the People.   On June 5, 2009,
defendant consented to the taking of an oral swab and on November
13, 2009, the People produced the DNA report.
          Defendant moved to dismiss the indictment pursuant to
CPL 30.30, arguing that "[t]he People waited one year and four
months to begin a DNA analysis of an object[] three of their
witnesses claimed he possessed," that the delay was "without
justification," and that a period in excess of six months had
elapsed, violating defendant's right to a speedy trial.   The
People opposed the motion citing various CPL 30.30 (4)
exceptions, including CPL 30.30 (4) (g), asserting that the
period of delay attributable to the DNA testing was an
exceptional circumstance under the statute.   On June 9, 2010, the
court denied defendant's CPL 30.30 motion without a hearing,
finding a relevant portion of the period at issue excludable


provides 45 days after arraignment on the indictment for such a
discovery motion by a prosecutor except for "good cause shown"
(CPL 240.90 [1]).

                               - 3 -
                               - 4 -                            No.

under CPL 30.30 (4) (g).   Defendant was convicted, upon a jury
verdict, of criminal possession of a weapon in the second degree
(two counts), reckless endangerment in the first degree, and
unlawful possession of marijuana.
           On appeal, the Appellate Division held that the 161-day
period of delay between when defendant consented to the DNA swab
(June 5, 2009), and when the People produced a report of the DNA
results (November 13, 2009), was chargeable to the People for
failing to exercise due diligence in obtaining defendant's DNA
sample (122 AD3d 765, 766 [2d Dept 2014], citing CPL 30.30 [4]
[g]).   The Appellate Division, upon adding the 161-day period "to
the periods of delay correctly conceded by the People," held that
"the People exceeded the six-month period in which they were
required to be ready for trial" (id.).    The Appellate Division
reversed the judgment, on the law, granted defendant's CPL 30.30
motion, and dismissed the indictment.    We now affirm.
           CPL 30.30, the "so-called 'speedy trial' statute," is a
longstanding fixture in our State's prosecution of criminal
actions and was specifically intended "to address delays
occasioned by prosecutorial inaction" (People v McKenna, 76 NY2d
59, 63 [1990]).   In 1972, when the legislature enacted CPL 30.30,
it was accompanied by a memorandum of the State Executive
Department, Crime Control Counsel which declared "the purpose of
the bill [is to] 'promote prompt trials for defendants in
criminal cases,'" noting "that '[t]he public, defendants and the


                               - 4 -
                               - 5 -                            No.

victims of crimes all have a strong interest in the prompt trial
of criminal cases'" (People v Anderson, 66 NY2d 529, 535 n 1
[1985], quoting 1972 McKinney's Session Laws of NY, at 3259).
          "Pursuant to CPL 30.30 (1)(a), the People must be ready
for trial within six months of the commencement of a criminal
action accusing a defendant of a felony offense" (People v
Carter, 91 NY2d 795, 798 [1998]).   "CPL 30.30 (4) lists the
periods which are to be excluded from the computation of time
within which the People are required to be ready" (McKenna, 76
NY2d at 62).   CPL 30.30 (4) (g), the statutory provision at issue
here, allows the exclusion of "periods of delay occasioned by
exceptional circumstances" in obtaining unavailable evidence
"material to the people's case, when the district attorney has
exercised due diligence to obtain such evidence" (CPL 30.30 [4]
[g]).
          The time to conduct DNA testing and to produce a DNA
report may, under certain circumstances, be excluded from speedy
trial computation as an exceptional circumstance.   To invoke the
exclusion provided in CPL 30.30 (4) (g), however, the People must
exercise due diligence in obtaining the evidence.   If the
exclusion "is to be given reasonable effect and [] is to fulfill
the legislative purpose, [it] must be 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]).     In


                               - 5 -
                               - 6 -                           No.

addition, while we have recognized that "'[t]here is no precise
definition of what constitutes an exceptional circumstance under
CPL 30.30 (4) (g),'" we have stated "that the range of the term's
application is limited by the dominant legislative intent
informing CPL 30.30, namely, to discourage prosecutorial
inaction" (People v Price, 14 NY3d 61, 64 [2010], quoting People
v Smietana, 98 NY2d 336, 341 [2002]).
          Here, as a result of the People's inaction in obtaining
defendant's DNA exemplar, the 161-day period of delay to test the
DNA and to produce the DNA report was not excludable from speedy
trial computation as an exceptional circumstance.
          The People argue that it was OCME's obligation to
affirmatively inform them that there was DNA evidence from the
gun swabs available for comparison and that OCME did not, until
May 2009, provide the People with the February 2008 report
indicating that DNA had been recovered.   The People also argue as
justification for their inaction that they were not aware of
OCME's LCN DNA testing on the gun swabs as it was a new advance
in scientific technology.   Therefore, the argument goes, they had
no affirmative obligation -- despite their discovery obligations
under CPL article 240 (see generally People v DaGata, 86 NY2d 40
[1995]) and their repeated declarations of readiness for trial on
the record -- to diligently ascertain the existence of all the
laboratory reports of scientific tests performed at the request
of law enforcement on the gun swabs from OCME.   These proffered


                               - 6 -
                                 - 7 -                               No.

explanations do not justify the prosecutorial inaction in this
case.   It is the People alone who have the burden of proof of
showing that they exercised due diligence sufficient to exclude
the delay (see People v Berkowitz, 50 NY2d 333, 349 [1980]), and
that burden was not sustained here.
            There is no reasonable excuse for the People's delay in
seeking a court order for defendant's DNA exemplar.      The weapon
was promptly submitted to OCME by law enforcement for examination
and the People waited until May 2009, almost nine months after
the indictment, to ask OCME what results, if any, were obtained
from the scientific testing performed on the gun swabs.      CPL
30.30 is a People-ready rule, and the Appellate Division
correctly held that the prosecutorial inaction in this case
contravenes CPL 30.30.
            Accordingly, the order of the Appellate Division should
be affirmed.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *   *     *
Order affirmed. Opinion by Chief Judge DiFiore. Judges Pigott,
Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided October 25, 2016




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