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THE PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, DEFENDANT’S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION PROPERLY GRANTED.

The First Department determined Supreme Court properly dismissed the indictment on speedy trial grounds. At issue was the delay associated with obtaining DNA test results. A delay for that purpose can be an “exceptional circumstance” justifying exclusion of the delay from the speedy trial clock, but only if the People act with due diligence. The court determined numerous other delays during the course of the proceedings demonstrated the People did not act with due diligence:

Pursuant to CPL 30.30(4)(g), periods of delay caused by “exceptional circumstances” are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance … . CPL 30.30(4)(g)(i) specifically makes excludable a continuance “granted because of 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.” Under this provision, the unavailability of DNA test results can be considered an exceptional circumstance, so long as the People exercised due diligence to obtain the results … .

Acknowledging that “[t]here is no precise definition of what constitutes an exceptional circumstance,” the Court of Appeals has made clear that the exception to the rule must conform to the legislative intent of discouraging prosecutorial inaction … . People v Gonzalez, 2016 NY Slip Op 01388, 1st Dept 2-25-16

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)/SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE TO SEEK A DNA TEST, SPEEDY TRIAL DISMISSAL PROPER)

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