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PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, affirming the dismissal of the attempted first degree murder indictment on speedy trial grounds, determined the People did not act with due diligence in seeking DNA test results. DNA had been recovered from the gun involved. A DNA swab was not taken from the defendant until nine months after indictment:

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” … . In 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” … .

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. People v Clarke, 2016 NY Slip Op 06939, CtApp 10-25-16

 

CRIMINAL LAW (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/ SPEEDY TRIAL (PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)/DNA TESTS (CRIMINAL LAW, PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS)

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