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FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined defense counsel’s failure to argue, in a motion to dismiss on speedy trial grounds, that the People did not act with due diligence in seeking DNA test results was not demonstrated to constitute ineffective assistance:

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 [the medical examiner] 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 … . People v Henderson, 2016 NY Slip Op 06938, CtApp 10-25-16

CRIMINAL LAW (FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/DNA TESTING (CRIMINAL LAW, FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/SPEEDY TRIAL (FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE

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