THE UNEXPLAINED DELAY OF 38 MONTHS IN SEEKING A WARRANT FOR A DNA SAMPLE FROM THE DEFENDANT, WHO HAD BEEN IDENTIFIED AS THE RAPIST BY THE COMPLAINANT RIGHT AWAY, VIOLATED DEFENDANT’S RIGHT TO A SPEEDY TRIAL; CONVICTION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion, reversing the Appellate Division, determined that the inexplicable delay in seeking a DNA sample from the defendant in this rape case violated defendant’s right to a speedy trial. The complainant reported the rape right away and named the defendant as the perpetrator. The defendant denied having sex with the complainant and refused to voluntarily provide a DNA sample. 38 months later the People applied for and were granted a warrant for the DNA sample. Defendant was convicted after a trial. The majority opinion went through the Taranovich (37 NY2d 442) pre-indictment-delay factors:

“Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause” … . It has not established good faith in this case. Here, 24 months are wholly unexplained by the record or any of the People’s papers in this matter and 7 months at a point late in the timeline are flimsily justified as necessary to decide the case required DNA evidence and then figure out how to get DNA evidence from defendant. The People’s own submissions demonstrate the emptiness of the claim that the police and the People did not know how to obtain defendant’s DNA and could not have figured it out sooner: not only did the assigned ADA obtain guidance on the warrant process in November of 2010—two years before the People filed their ultimately successful warrant application—but the investigator who eventually prepared the warrant application managed to figure out the procedure in part of a day. Indeed, our own case law dating back to at least 1982 provides the needed guidance on how to address this routine legal matter … . People v Regan, 2023 NY Slip Op 01353, CtApp 3-16-23

Practice Point: Although much longer pre-indictment delays have been excused, here the unexplained 38-month delay in applying for a warrant for a DNA sample from the defendant, who had been identified right away as the rapist by the complainant, violated defendant’s right to a speedy trial requiring reversal of the rape conviction.