Appearances of Counsel

Julie Nobel, for the People

Lawrence Hermann, for the defendant (Jorge Santos, on the motion)

On November 22, 1986, Jose Martinez was shot and killed outside his restaurant in Washington Heights. After an investigation, the police focused on the defendant, Justo Jonah Santos, who was then 16 years old. Within a few months, the police tracked the defendant to the Dominican Republic, and in January, 1987, the defendant agreed to speak to the investigating detective on the telephone, when he confessed to the shooting, claiming that he acted in self-defense. When the defendant failed to return to the United States, the New York police assisted the Dominican authorities in having the defendant arrested in the Dominican Republic in February, 1988 and charged with the homicide there. In March, 1988, the New York police closed the case, noting an arrest by an outside agency.

Having closed the case, the police made no further efforts to locate the defendant. In February of 2013, the case was reopened after the victim's daughter, Joselyn Martinez, using the Internet, located the defendant, now 44 years old, in Miami, Florida, where he had been living for many years under his own name, working, and raising a family. A grand jury indicted the defendant for murder in June, 2013, and defendant was arrested in Florida. He waived extradition, and he has been incarcerated since June, 2013.

Defendant moved to dismiss the charges, arguing that the almost 27-year delay between the date of the crime and his arrest deprived him of his federal and state constitutional right to due process and a speedy trial. The People opposed the motion. After considering the motion and response, this Court ordered a Singer hearing, and testimony was heard on August 11, 12, and 14, 2014. Oral argument on the motion was heard on September 18, 2014. The following findings of fact are based on the court file, both sides' submissions and exhibits, and the testimony at the Singer hearing.

On November 22, 1986, the defendant, 16 years old, a legal permanent resident of the United States originally from the Dominican Republic, and a student at the College of Aeronautics and Technology in Queens, went with two friends to play pool. Later they decided to go to a restaurant on Dyckman Street, where one or more of the teenagers used disrespectful language, offending the server. The server went into the kitchen, returning with about four men, who chased the boys out of the restaurant, and a fight began. One of the teenagers ran away, but the fight continued. At some point, the defendant broke free, pulled out a revolver and shot the owner of the restaurant, Jose Martinez, in the chest. Mr. Martinez died later that day.

After the shooting, the defendant and his friend ran away. The defendant threw the gun in the trash, and a few weeks later he went to the Dominican Republic, staying with family members. Detective Joseph Rivera investigated the homicide, and after canvassing and interviewing witnesses, focused on the defendant as the shooter. He eventually located the defendant's mother, Ana Abinader, in New York, and she provided him with the defendant's telephone number in the Dominican Republic and arranged for him to speak with the defendant in January, 1987. During that conversation, which the detective recorded, the defendant confessed to shooting Martinez, although he stated that Martinez was strangling and "almost killing" him. The defendant provided Rivera with the names and addresses of his two friends, and he also gave Rivera his true date of birth and Social Security number. The defendant agreed that he would return to the United States to "clear this matter." When the defendant did not return, Rivera filed a "wanted" or "investigation card" with BCI (Bureau of Criminal Investigation) at One Police Plaza, which listed the defendant's name (Justo Jonah Santos), his date of birth, his driver's license number, his Social Security number, and physical characteristics. See Hearing Exh. 7.^[FN1] None of this information was filed with any national database or other state or federal government agency.^[FN2]

The detective continued to search for the defendant, including canvassing the area of the crime to see if he had returned, conducting systematic checks with airlines flying to the Dominican Republic, and checking with the Immigration and Naturalization Service to determine if he had re-entered the United States. The police also kept family members under surveillance. Rivera was also in contact with the victim's stepson, Franklin. Franklin went to the Dominican [*3]Republic in approximately April, 1987, and with assistance from the Dominican national police, was able to discover the defendant's "exact" location. The detective was also in touch with Martinez's sister, Casilda, who lived in the Dominican Republic, and he told her that he might need assistance from the Dominican national police in the event the defendant did not return. Additionally, Detective Rivera contacted the Dominican authorities in October, 1987, asking that they get in touch with him if they made contact with the defendant, and he continued to be in contact with the victim's family members. Martinez's brother, Candido, filed a criminal complaint against the defendant in the Dominican Republic on November 17, 1987, and included a copy of a letter from "the authorities of New York, addressed to the Dominican police, asking for his arrest." See Defendant's Motion to Dismiss, Exhibit B (transcript of Dominican proceedings).

In February, 1988, the defendant's mother died, and family members arranged for her body to be flown to the Dominican Republic for burial. After going to the funeral home in New York, Detective Rivera informed the victim's sister by telephone that the defendant would be picking up his mother's body, provided the date and flight number, and asked her to inform the Dominican Republic police so that they could arrest the defendant. Def Motion, Exh. B; Tr: 97, 101. The detective then learned that the defendant was arrested at the Dominican Republic airport on February 18, 1988, upon picking up his mother's body.^[FN3] Family members in the Dominican Republic also informed Rivera that the defendant was being transported to Santo Domingo, and that the homicide division of the national police would handle the investigation. People's Resp. at 6. Under Dominican law, a Dominican citizen can be prosecuted in the Dominican Republic for committing a felony in another country.^[FN4]

At some point, the police consulted with the FBI about obtaining the defendant from the Dominican Republic, and were told that pursuant to a 1910 treaty between the US and the Dominican Republic, the Dominican authorities had the option to decide whether to surrender an individual sought by the United States, but the FBI believed it was very unlikely they would do so (People's Resp. at 6-7; Tr: 102). Neither an informal or formal extradition request was made.^[FN5] [*4]Rivera also reached out to the New York County District Attorney's office, and he advised Assistant District Attorney Clancy in the homicide bureau that he had located the defendant in the Dominican Republic, that he had obtained a audiotaped confession from him, and that the defendant had been positively identified by witnesses from a photograph. ADA Clancy told Rivera she would be interested in prosecuting the case if the defendant were arrested in the United States. Tr: 102, 123-24. No warrant was issued for the defendant, and no contact was had between the police and the District Attorney's office about the case until 25 years later.

On March 9, 1988, Detective Rivera and his superiors, Sgt. Resnick and Capt. Rowe, closed the case. At the Singer hearing, Rivera stated that closing a case meant that "basically no further investigation was going to be done and the case was pretty much solved" (Tr: 103). The police closing memorandum noted that the case had concluded with an arrest by an "outside agency," meaning the Dominican Republic authorities. (People's Resp. at 7; Tr: 105-106). Rivera claimed that it was his supervisors' decision to close the case, and that he disagreed with the decision. He thought the case should not be closed, "in hopes that we would be able to arrest [the defendant] in the near future" (Tr: 126).^[FN6]

The defendant was charged with voluntary manslaughter in the Dominican Republic (Articles 295 and 304), and, in 1988 and early 1989, the case proceeded according to the Dominican Republic's criminal justice system.^[FN7] See also United States v. DeJesus-Quezada, 667 F. Supp.2d 353, 354 (S.D.NY 2009) (Article 295 is the equivalent of voluntary manslaughter). The defendant was questioned and gave a statement substantially similar to the one he had given Rivera, claiming self-defense. The victim's brother, Candido Martinez Taveras, who had filed the criminal complaint, was also questioned. See Def. Motion, Exh B. Taveras told the Dominican court that Detective Rivera was in charge of the investigation in the United States, and that Rivera had informed him that he was willing to provide documents to the Dominican court, as well as come to the Dominican Republic to be interviewed. Indeed, the Dominican police had, as part of their investigation, a letter from Rivera, dated October 28, 1987, describing the circumstances of the crime. The authorities also had available to them as part of the investigation and proceedings, the death certificate, noting the cause of death, a photograph of the defendant "published by the family of the victim," offering a reward for his arrest, and character references from the defendant's employers and school. See Def. Motion, Exh. B.

Based on the record of the Dominican proceedings, it appears that the defendant, who [*5]was charged with voluntary manslaughter and faced a sentence from three to twenty years of imprisonment, was convicted of a lesser involuntary manslaughter charge, under Article 326 of the Criminal Code and sentenced to one year in prison,^[FN8] along with a civil order of restitution to the victim's mother of 50,000 pesos.^[FN9] See Def. Motion at 5; Exh. B. The defendant was released from prison on March 3, 1989.

Shortly thereafter, the defendant returned to the United States under his own name, establishing residence in Miami, Florida. He obtained employment in the cleaning industry, and worked in government and law enforcement offices, including as property manager for a cleaning company servicing the Metro-Dade police headquarters, for which he was required to undergo

The People presented the testimony of Joselyn Martinez, Jose Martinez's daughter, who was nine years old when her father was killed. She knew the suspect's name at the time, and was aware of wanted posters that had been created with a photograph of the defendant. Although she was also aware that he was arrested and charged in the Dominican Republic, she was not sure what he had been convicted of. In 1996, when she learned that there was no statute of limitations for murder, and that an individual could be prosecuted in this country even though that individual had already been prosecuted for the same crime in another country, she went to the 34th precinct to inquire about the case. She spoke to a Detective Gugliemo, and the case file was retrieved. She was given information that confirmed that Justo Jonah Santos Abinader was the name of the suspected shooter, and that he had been arrested in the Dominican Republic in 1988. As a result of her inquiries, the detective made an attempt to obtain files from the Dominican Republic concerning the defendant's case, but he was apparently unsuccessful (Tr: 157, 164-66).

However, Ms. Martinez spoke to her half-brother, who lived in the Dominican Republic, and he was able to obtain information from the Dominican courts that detailed the arrest and the charges. Between 1997 and 2006, Ms. Martinez made no additional efforts regarding the case. In 2006 and 2008, she conducted some searches on the Internet, and got several results matching the defendant's name.^[FN12] In 2012, she returned to the 34th precinct, and she was told that the police would look for the case file. In January of 2013, the file was recovered, and after the police provided her with the defendant's date of birth, information the police had had since 1987, she was able to match one of her previously discovered search results to the defendant and his Miami location. She then spoke to Sergeant Debold at the 34th precinct.

Detective Robert Dewhurst, of the cold case squad, obtained the case from Sgt. Debold, through a friend of his who worked with Debold. He reopened the case in February, 2013, and confirmed the location of the defendant in Florida. He also obtained files from United States Immigration, and he verified through the defendant's date of birth, social security number and computer checks that he was the same person as the suspect from the 1986 homicide. There was also a photograph of the defendant as a young man in the file, and Dewhurst determined that it bore a resemblance to the defendant's Florida driver's license (Tr: 138-39). In June of 2013, Dewhurst went to Florida, interviewed the defendant, and arrested him. Thereafter, defendant waived extradition and was transported to New York.

The People's grand jury presentation began on May 29, 2013 and was concluded on June 7, 2013. Defendant was indicted for murder in the second degree and criminal possession of a [*7]weapon in the second degree. The People conceded at the Singer hearing that there was no evidence presented to the grand jury that was not available in 1986 or 1987, when the crime was originally investigated, except for Dewhurst's testimony (Tr: 118-19).^[FN13]

The People also presented testimony from Warren Murray, an assistant district attorney in New York County for 40 years, and a bureau chief. He testified that he was familiar with the New York County District Attorney's office's practices regarding the prosecution of homicides in the late 1980's and early 1990's. According to ADA Murray, it was the practice not to obtain an indictment or file a felony complaint in such cases until they had "all evidence possible," including a statement from the defendant, because once a defendant was so charged, the right to counsel attached, and could not be waived in the absence of counsel. Therefore, an arrest warrant for a defendant would not be issued until after the defendant was located and an attempt made to obtain an uncounselled statement. Murray had no knowledge of this particular case,^[FN14] and could not answer if an already-obtained audiotaped statement or confession from a defendant would obviate the need to locate a defendant before a warrant, based upon either a felony complaint or an indictment, would be issued. Murray agreed, however, that on occasion, "NA" or non-arrest indictments (that is, indictments not preceded by an arrest and an arraignment in Criminal Court), were obtained by his office.^[FN15]

Finally, the People presented the testimony of Glenn Kushel, a senior immigration services officer with U.S. Citizenship and Immigration Services, a division of the Department of Homeland Security. Kushel, an attorney, noted that the defendant had become a lawful permanent resident when he entered the country in February, 1982, and was given an "A" number. When defendant filed his citizenship application in 2007, he used that "A" number, as well as his true date of birth and social security number (Tr: 50; Exh. 5). When a citizenship application is submitted, security checks are run, including an FBI name check, and a national crime center, or NCIC, review. Kushel testified that if an arrest warrant had been filed with the NCIC, it would have come up during the CIS review. Additionally, if a warrant for interstate flight had been filed with the federal authorities, that also would have turned up during the CIS review. Kushel also testified that if a warrant had been issued in the 1980's or 90's and entered into NCIC, it would have turned up when that person tried to enter the United States.

On his citizenship application, the defendant listed six trips he had taken to Nicaragua and the Dominican Republic between 2003 and 2007. He did not list the approximately two years he had spent in the Dominican Republic after the shooting of Martinez (Tr: 55; People's Hearing Exh. 5). He also denied being arrested or convicted of a crime. Id.

The defendant also testified, including about the circumstances of his return to the United [*8]States and residence in Florida as described above (see pages 7-8). He testified that he did not state his arrest and incarceration on his immigration application because he thought it was a "resolved situation" and he did not think it had anything to do with the United States (Tr: 271-72). He noted that he had had numerous background checks conducted, and since nothing had come up, he assumed it was a finished matter involving only the Dominican Republic (Tr: 271). He also did not state that he was convicted of anything on that form or on his gun permit application because he did not think he was convicted of a crime — to his knowledge, it was "self-defense" and it was "over" (Tr: 240). He did not state all his trips because he listed only the trips on his passport (Tr: 275).

A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution, our state's due process clause, and by statute. New York has long held that "unreasonable delay in prosecuting a defendant constitutes a denial of due process of law." See People v. Romeo, 12 NY3d 51, 55 (2009); People v. Singer, 44 NY2d 241, 253 (1978). The state due process right is broader than the right to a speedy trial guaranteed by statute and by the Sixth Amendment, Singer, 44 NY2d at 253, and violation of this right results in dismissal of the indictment. Romeo, 12 NY3d at 55.^[FN16]

A court must examine a speedy trial claim in light of five factors: 1) the extent of the delay; 2) the reason for the delay; 3) the nature of the underlying charges; 4) any extended period of pre-trial incarceration; and 5) impairment of the defendant's defense, or prejudice, due to the delay. Romeo, 12 NY3d at 55; People v. Taranovich, 37 NY2d 442, 444 (1975). The first factor, the extent of the delay, is of critical importance, because, " all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby.'" Romeo, 12 NY3d at 56 (quoting Taranovich, 37 NY2d at 445). In Romeo, the Court of Appeals labeled the 12-year delay in that case "extraordinary." Where the delay is protracted, the question of why the delay occurred must be closely scrutinized, that is, the second factor becomes crucial, and the burden is on the People to establish good cause. Romeo, 12 NY3d at 56; Singer, 44 NY2d at 254. Where the delay is great enough, there need not be proof of prejudice to the defendant. Taranovich, 37 NY2d at 447; see also People v. Staley, 41 NY2d 789, 792 (1977) (failure to conduct a prompt prosecution may require dismissal even in the absence of prejudice to the defendant); People v. Andine, 214 AD2d 373, 375 (1st Dep't 1995) (where a delay is sufficiently lengthy, a defendant need not present proof of prejudice).

Of course, where there is a need to investigate to "discover the offender," or to gather sufficient evidence to bring the case, a determination made in good faith to defer commencement of the prosecution will not deprive the defendant of due process of law. But if commencement of the action has been delayed for a lengthy period without good cause, the defendant will be entitled to dismissal, even without a showing of prejudice. Singer, 44 NY2d at 254. Where the delay is caused by a defendant's efforts to avoid apprehension, or by his incarceration in another jurisdiction, the People must make "diligent, good faith efforts" to secure his presence. See Romeo,12 NY3d at 57; Andine,214 AD2d at 374-75.

Here, in examining the five factors, the nearly 27-year delay is "extraordinary." Even if the first two years of this period — during which the police endeavored to investigate the murder and arrest the defendant — are excluded, that nonetheless leaves a 25-year delay since the police closed the case. Thus, the People have the burden to establish good cause for the delay. Although the nature of the charge, murder, could not be more serious, as the Romeo court noted in dismissing a case involving the "grave offense of murder," "the level of offense does not trump a defendant's right to a speedy trial." 12 NY3d at 57. Under the fourth factor, there has been no extended period of pre-trial incarceration. As for prejudice, such a long delay may be presumed to have prejudiced the defendant in terms of finding witnesses and the natural loss of witnesses's memories of the events.^[FN17] But, as noted above, where the delay is sufficiently lengthy, a defendant need not present proof of prejudice, and the failure to conduct a prompt prosecution may require dismissal even in the absence of prejudice to the defendant. Andine, 214 AD2d at 375; People v. Charles, 180 AD2d 868 (3d Dep't 1992) ("unjustified delay of this magnitude" (43 months) obviates any need for defendant to show prejudice).

It is clear that this court must focus on the second factor and the People's burden to establish good cause for the delay. This court is constrained to find that the People have not sustained their burden, and have failed to establish a cogent reason for the 25-year delay. See People v. Allen, 13 AD3d 639 (2d Dep't 2004). In the usual constitutional speedy trial case, a court examines the efforts made to apprehend the defendant and whether those efforts were "reasonably diligent," or, whether the police made reasonable efforts to continue investigating a case or produce more evidence against a suspect. Here, this court cannot conduct such an analysis, because there is no dispute that the police did absolutely nothing between March, 1988, when the case was closed, and February, 2013, when the case was re-opened in response to the victim's daughter, who had easily located the defendant using the Internet and information that had been continuously in the possession of the police.

Where the police choose to close a case, and decline to make any further efforts to locate a defendant, that cannot be considered good cause. In Andine, 214 AD2d at 373, a detective closed a case after six weeks, even though the victim had identified the defendant from a photograph. The court found that the four-and-a-half-year delay, after another detective re-opened the case and an indictment was brought against the defendant, could not be justified. The court noted that efforts to locate the defendant during the delay were, "at best, minimal." Given the lack of "diligent effort," dismissal was mandated. In People v. Sinagra, 15 Misc 3d 1146(A) (S.Ct. Kings Cty. 2007), the court dismissed a murder case after a 16-year delay that occurred after the police negligently closed a file based on erroneous information. As the court noted, had the case not been closed, the police would have revisited the case periodically, thereby pursuing evidentiary leads, but instead "the case was closed and nothing was done." Moreover, neither [*9]neglect nor inadvertence is sufficient to justify a long delay. See Staley, 41 NY2d at 792 ("sheer neglect or trifling" not permissible); People v. Wheeler, 289 AD2d 959 (4th Dep't 2001) ("inadvertence" insufficient to justify delay); People v. Gallup, 224 AD2d 838 (3d Dep't 1996) (vague references to backlog and turnover of personnel insufficient to justify 4-year delay).

In contrast, where the police make "diligent efforts" to locate a defendant, dismissal will be denied. See People v. Salcedo, 304 AD2d 309 (1st Dep't 2003) (police unable to locate defendant despite "reasonably diligent efforts"); People v. Wing Keung Tsang, 284 AD2d 218 (1st Dep't 2001) (same); People v. Suero, 235 AD2d 357 (1st Dep't 1997) (search for defendant "reasonably diligent"); People v. Quiroz, 192 AD2d 730 (2d Dep't 1993) (most of delay due to inability to locate sole eyewitness and the defendant despite "diligent" efforts).

Here, once the police made the decision to close the case, the prosecution's efforts were not "reasonably diligent;" they were non-existent. Had the police desired to locate the defendant with the aim of prosecuting him, there were many steps that could have been taken, beginning with following up with either the victim's family members or the Dominican authorities to determine defendant's sentence and release date. The record establishes that before defendant's arrest, Rivera was in close contact with at least three of the victim's family members, as well as the Dominican police. At one point before the defendant was first located, Rivera was able to discover the defendant's "exact" location in the Dominican Republic, through contact with the victim's stepson. He was also able to obtain the Dominican authorities' cooperation in arresting the defendant at the Dominican airport. He provided documents to the Dominican authorities prosecuting the defendant. It is apparent that had the police not closed the case, they could easily have obtained information regarding the outcome of the case.

Similarly, once the police discovered the defendant's release date, they could have followed up with the family members to determine if he had left the country. Nor should it have been a particular surprise that the defendant might re-enter this country after his release, since Rivera was aware that he had grown up here, had family ties here, had attended college here, and had even allegedly re-entered the country after his initial flight. Cf. People v. Chaparro, 303 AD2d 277 (1st Dep't 2003). Rivera could also have periodically engaged in the same investigative steps he took while attempting to locate the defendant before his arrest — that is, canvassing his neighborhood, investigating friends and family members, checking with airlines flying from the Dominican Republic, and checking with INS or U.S. Customs to determine if he had re-entered the country. But because the case was closed, "nothing was done." See Sinagra,15 Misc 3d at 1146; see also Wheeler, 289 AD2d at 959.^[FN18]

In essence, the police here made a choice to close the case and not make any further attempts to seek prosecution of the defendant in this country. In that sense, this case is analogous to Romeo. In Romeo, the defendant fatally shot a man and absconded to Canada, where he fatally shot a second victim. A unanimous Court of Appeals found that the People's decision to defer prosecution in favor of the Canadian prosecution, including the failure to make an extradition request, deprived defendant of his due process right to a speedy trial, and they affirmed the [*10]Appellate Division's dismissal of the indictment. The Court concluded that by "deferring prosecution and choosing not to attempt to extradite the defendant, the People ran the risk of a speedy trial violation." 12 NY3d at 57. Similarly, here, the police chose to close the case, and the District Attorney's office chose not to prosecute until such time as the defendant returned to New York. As in Romeo, by following this policy, the People "ran the risk of a speedy trial violation."

Similarly, there is no claim here that the People needed further investigation or evidence and that was the cause of the delay. This was not a complicated case where DNA evidence was later found, or witnesses were failing to cooperate. The evidence against the defendant was straightforward and was always readily available to the People. Nor did the police or the People use the 25-year delay to investigate or gather more evidence. See Romeo, 12 NY3d at 58 (People did not claim delay was result of time needed for pre-trial preparation); Wheeler, 289 AD2d at 959 (People had all the information necessary to charge the defendant before 22-month delay); Gallup, 224 AD2d at 839 (within two months of the crime, police had completed investigation and had written confession before 4-year delay).^[FN19] In contrast, where there is an investigative delay that is "satisfactorily explained," the case will not be dismissed. See People v. Gaston, 104 AD3d 1206 (4th Dep't 2013) (People had insufficient evidence; not until witness gave new information and DNA testing completed could defendant be charged); People v. Almonte, 90 AD3d 579 (1st Dep't 2011) (insufficient evidence until witness provided new and valuable information and agreed to cooperate); People v. Nazario, 85 AD3d 577 (1st Dep't 2011) (People's efforts to acquire more evidence); People v. DeRosario, 74 AD3d 1356 (2d Dep't 2010) (case never dormant, but consistently under investigation).

ADA Murray's testimony that it was the People's "practice" not to file charges in homicide cases (a predicate for the issuance of a warrant), before the defendant was in custody so that an uncounselled statement could be obtained does not justify the delay. First, neither ADA Murray nor anyone else from the D.A.'s office provided testimony about the actual reason for the delay in this case. Secondly, as noted, the police had already obtained an uncounselled confession from the defendant — a fact known to ADA Clancy in 1988. Finally, even if the practice were the principal reason for the delay, it is not entitled to sufficient constitutional significance to sustain this indictment. Simply put, by delaying prosecution, the People take the [*11]risk that they will face a meritorious speedy trial claim. See Romeo, 12 NY3d at 57. Indeed, the sum of ADA Murray's testimony is that the "practice" existed for the purpose of obtaining a tactical advantage, to wit: an uncounselled statement in an already sufficient case. While the People may have been entitled to follow this practice in an effort to bolster their case, it is not a sufficient reason to excuse the delay for purposes of constitutional speedy trial analysis. See DeRosario, 74 AD3d at 1356; People v. O'Gara, 239 AD2d 215 (1st Dep't 1997) (reason for delay in prosecution cannot be for the purpose of gaining a tactical advantage).

The People also argue that defendant was a "fugitive" and that the delay was therefore caused by the People's understandable failure to locate him. The problem with this argument is that the police were not trying to locate the defendant in the 25-year period between 1988 and 2013.^[FN20] Moreover, while there is no doubt that the defendant fled to the Dominican Republic in the aftermath of the shooting, the fugitive label is considerably more difficult to employ after 1989, when the defendant re-entered this country under his own name, and settled in Miami, again under his own, somewhat uncommon, name. He underwent background checks for his job, which included work for a law enforcement agency, he married, he obtained a driver's license, and applied for a gun permit — again, using his real name, date of birth, and social security number. He even corrected his date of birth when the state authorities entered it incorrectly. He was stopped for traffic violations, and the police checked for warrants. Finally, he applied for United States citizenship in 2007, using his real name, date of birth, "A" number, and social security number.

It is clear that if a warrant for the defendant had been issued by New York, or if the pedigree information about the defendant, which was continuously in the possession of the police, had been entered into NCIC, there were numerous occasions when the defendant would have been found. Even without a warrant, had the New York police conducted occasional searches, it would appear that the defendant would not have been difficult to locate, certainly after the Internet became available, or by using any of the search methods and databases available to the police, even before the Internet. Certainly, a civilian had no difficulty locating the defendant, and that was without the information and methods available to the police. But the fact is that the police were not looking.

The People also argue that the defendant lied on his citizenship application and on his gun permit application, and that this was the cause of the delay. This argument also fails to persuade me, and it appears to miss the point. First, the citizenship application was not filed until 2007, or 19 years after the police closed the case. As noted above, this cannot be the "principal cause of the delay," see e.g., Chaparro, 303 AD2d at 277, as the People could easily have found the defendant by then, using the Internet at least, if not by other investigative means. Second, as Kushel testified, had a warrant been issued by New York, it would have turned up as soon as defendant filed his application. Because the case was closed, because the police failed to enter any information into any national database, and because the D.A.'s office chose not to obtain a warrant even though there was ample probable cause to do so, no one was looking for the [*12]defendant, so this did not happen. The People would shift the entire burden to the defendant to put himself forward for prosecution. But this is not the law. As the Court of Appeals has stated:

Moreover, that law was amended in 1998, thus making an extradition request more likely to be granted after that date.^[FN22] Had the case been open, and the police attempting to obtain the defendant's presence in this country, they could have made such a request then. And, had they made such a request, they would have discovered that the defendant was no longer in the Dominican Republic, and then been able to focus their efforts here. But because the case was closed, no such efforts were undertaken.

Finally, the People have made reference to what they consider a "shockingly" low sentence in the Dominican Republic. See People's Resp. at 8. The implication is that had the defendant been given a longer sentence, the People would not be arguing for prosecution here. But if the People's decision about whether to prosecute the defendant depended at all on the length of the sentence he received in the Dominican Republic, it was incumbent upon them to [*13]have determined at the time of the prosecution what that sentence was, and not wait 25 years.

The court recognizes the People's dismay with the results of the defendant's Dominican

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