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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 127
The People &c.,
            Respondent,
        v.
Steven Henderson,
            Appellant.




           Leila Hull, for appellant.
           Ann Bordley, for respondent.




DiFIORE, Chief Judge:
           After a jury trial, defendant was convicted of rape in
the first degree and criminal sexual act in the first degree (two
counts).   Prior to trial, defendant filed a CPL 30.30 motion to

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dismiss the indictment on the ground that he was deprived of his
statutory right to a speedy trial.     The trial court, as relevant
here, excluded the periods of delay for the DNA testing process
as exceptional circumstances under CPL 30.30 (4) (g) and denied
defendant's speedy trial motion without a hearing.    Defendant
claims on direct appeal that he was denied effective assistance
of counsel because his trial counsel's motion to dismiss the
indictment on CPL 30.30 grounds failed to argue that the People
should be charged for certain periods of delay due to the testing
of the DNA evidence by the Office of Chief Medical Examiner
(OCME) in successive stages.   The record does not support
defendant's contention.
          Defendant was charged with acting in concert with
multiple accomplices in a sexual assault.    As the People
explained at defendant's arraignment on the indictment on January
7, 2009, OCME had generated one full male DNA profile from the
sexual assault evidence collection kit and extra alleles were
found on the semen samples from the victim's jeans.    Defendant
then consented to provide his DNA exemplar.    On June 24, 2009,
the People stated that OCME had not yet finished its final report
but reported that it was "a no-match."    The case was adjourned to
August 13, 2009 for a final conference, and on that date, the
People reported that OCME did not have its final report and had
not reported the results of the DNA analysis.    After inquiry from
the court, the People explained that after receiving the testing


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results from the semen sample, additional testing had been
performed on the fingernail screens.
          As we have previously stated, "[v]ery rarely, a single
lapse by otherwise competent counsel compels the conclusion that
a defendant was deprived of his constitutional right to effective
legal representation" (People v Turner, 5 NY3d 476, 478 [2005]).
In People v Brunner (16 NY3d 820 [2011]), a case where defense
counsel failed to file a CPL 30.30 motion entirely, we held that
defendant's ineffective assistance of counsel claim failed as
there was "nothing clear cut about his CPL 30.30 claim" and "the
governing law was unfavorable" (16 NY3d at 821).
          Here, defendant argues that he was denied effective
assistance of counsel because his trial counsel failed to argue
that the June 24, 2009 and August 13, 2009 adjournments, totaling
86 days, were chargeable to the People due to their alleged
failure to act with due diligence in securing DNA testing (see
CPL 30.30 [4] [g]).   Defendant's claim that the People did not
exercise due diligence is based on the supposition that the
People did not seek testing of the fingernail screens as part of,
or at the same time as, the sexual assault evidence collection
kit and instead permitted OCME to do sequential testing of the
evidence after defendant had been excluded from the semen sample.
In essence, defendant contends that had defense counsel argued
that those delays were chargeable to the People under CPL 30.30,
the indictment would have been dismissed.


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          On this record, defense counsel was not ineffective for
failing to raise the argument that the People were not acting
with due diligence, as there is nothing in the record to
demonstrate that the People were not diligent in requesting DNA
testing on the evidence or that the manner in which the DNA
testing was conducted by OCME was inconsistent with standard
laboratory protocols.   In addition, at the time of defendant's
CPL 30.30 motion, there already was Appellate Division authority
holding that the period of time needed to obtain the results of
DNA testing could be excluded from speedy trial computation as an
exceptional circumstance (see e.g. People v Robinson, 47 AD3d 847
[2d Dept 2008], lv denied 10 NY3d 869 [2008]).
          In sum, defendant's assumptions as to the protocols for
successive DNA testing are based on matters outside the record
and beyond review on this appeal.   The ineffective assistance of
counsel claim that defendant presents to this Court is of the
type where "it would be better, and in some cases essential, that
an appellate attack on the effectiveness of counsel be bottomed
on an evidentiary exploration by collateral or post-conviction
proceeding brought under CPL 440.10" (People v Brown, 45 NY2d
852, 854 [1978]).
          Accordingly, the order of the Appellate Division should
be affirmed.




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
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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