Supreme Court, Kings County, July 26, 2023

Howard Tanner for defendant.

Eric Gonzalez, District Attorney (Salima Labeb of counsel), for the People.

Shakeem Jones (hereinafter: defendant) is charged, pursuant to Kings County indictment IND-71628-23, with the crimes of murder in the second degree (Penal Law § 125.25 [1]); and manslaughter in the first degree (Penal Law § 125.20 [1]).^[FN*] The defendant moves this court for an order dismissing the instant indictment on the grounds of a violation of the defendant's state and federal constitutional rights to a speedy trial and due process of law, arising from pre-indictment delay. (See People v Singer, 44 NY2d 241 [1978].) The People oppose the defendant's instant motion in its entirety and the defense filed a reply. Defendant's motion is disposed of as follows:

On February 20, 2015, this defendant pleaded guilty to Kings County indictment 1622/2012, for the shooting of Ruben Alexander on February 5, 2012, in Kings County. The defendant received a promised total sentence from the court of 13 years' incarceration, followed by five years' postrelease supervision. After entry of the plea, while the defendant was serving his sentence of imprisonment, on December 29, 2019, Ruben Alexander is alleged to have succumbed to the wounds suffered as a result of the shooting and died. The People received the autopsy report for Ruben Alexander from the New York City Office of the Chief Medical Examiner (hereinafter: NYC OCME) on February 22, 2020, which listed the manner of death as a homicide and the cause of death as complications from a gunshot wound to the chest.{**80 Misc 3d at 469}

On March 16, 2020, due to the worldwide COVID-19 pandemic, court operations in the [*2]New York State Unified Court System, inclusive of convening grand juries, were suspended by Executive Order of then Governor Andrew Cuomo. (See Executive Order No. 202.8 [9 NYCRR 8.202.8] et seq.) Operations resumed on August 10, 2020, but were briefly suspended again from November 16, 2020, to November 23, 2020. In total, this resulted in an inability to present cases to a Kings County grand jury for a period of five months.

Ultimately, the People presented the instant charges, concerning the alleged homicide of Ruben Alexander by the defendant, to a Kings County grand jury in March of 2023, filing the instant indictment on March 22, 2023. Although three calendar years elapsed from the death of Ruben Alexander, due to the inability to impanel a grand jury in this county, the delay sub judice is a period of approximately two years and seven months (31 months).

The defendant was arraigned on the instant indictment on April 10, 2023, the same date that the defendant was scheduled to be released from state custody on his conviction pursuant to Kings County indictment 1622/2012, for the underlying shooting of Ruben Alexander. The People argue in their opposition to the instant motion that they attempted to arraign the defendant prior to his scheduled release date, on March 31, 2023, yet due to logistical issues with a single member of the New York City Police Department (hereinafter: NYPD) and alleged refusal by the defendant to be produced for processing on the instant indictment, the defendant could not be arraigned on this indictment until April 10, 2023. However, this court finds the People's explanation for this delay in arraignment unpersuasive and, in any event, of no legal consequence. (See CPL 100.05.)

New York's, as well as the Federal, Constitution guarantees criminal defendants the right to a speedy trial and prompt prosecution. (People v Staley, 41 NY2d 789 [1977]; People v Vernace, 96 NY2d 886 [2001]; NY Const art I; CPL 30.20; US Const 6th, 14th Amends.) "An unjustified delay in prosecution will deny a defendant due process of law." (People v Decker, 13 NY3d 12, 14 [2009].) In addition, the Court of Appeals has held that there is no "fine distinction between due process violations based on delay in commencing prosecution and speedy trial{**80 Misc 3d at 470} violations . . . [T]he factors utilized to determine if a defendant's rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution." (People v Wiggins, 31 NY3d 1, 12 [2018] [internal quotation marks omitted].)

The factors to be considered are: (1) the extent of delay; (2) the reason for delay; (3) the nature of the underlying charge; (4) the presence of extended pretrial incarceration; and (5) impairment or prejudice suffered by the defendant as a result of the delay. (People v Taranovich, 37 NY2d 442, 445 [1975].) Upon a finding of a speedy trial violation, the only remedy is to preclude prosecution. (Id. at 444.)

Here, the extent of delay is a period of 31 months. It commenced upon the death of Ruben Alexander on December 29, 2019, but was tolled pending the availability and receipt by the People of the autopsy report on February 22, 2020. There is no temporal exclusion for continued investigation applicable to this case, except for the determination and report of the NYC OCME finding the death to be a result of the February 5, 2012 shooting. This period continued until the filing of the instant indictment, on March 22, 2023, but was tolled for the five-month span while grand jury operations were suspended due to the COVID-19 pandemic.

The People's purported reasons for delay consist of the inability to impanel a grand jury, backlog of cases, prioritization of cases, lack of sufficient staffing and the need to re-request lost records, which are examined in detail below.

The underlying charges are of the most serious nature, murder in the second degree (Penal Law § 125.25 [1]) and manslaughter in the first degree (Penal Law § 125.20 [1]), class A-I and B felonies, respectively.

The defendant has been incarcerated, pursuant to his plea of guilt on Kings County indictment 1622/2012.

The final factor to take into consideration is the prejudice suffered by the defendant as a result of the delay. As discussed below, when evaluating periods of delay in commencing prosecutions, prejudice to the defendant is not always a condition precedent.

Pursuant to New York law an "unreasonable delay in prosecuting a defendant constitutes a denial of due process." (Singer at 253; see also Staley at 791.) "[I]n a proper case, a lengthy and unjustifiable delay in commencing the prosecution may{**80 Misc 3d at 471} require dismissal even though no actual prejudice to the defendant is shown." (Singer at 253-254.)

"As the Court in Singer recognized, when there has been 'a protracted delay, certainly over a period of years, the burden is on the People to establish good cause.' Singer at 254. Of course, a 'good faith determination to defer commencement of the prosecution for further investigation...will not deprive a defendant of due process even though the delay may cause some prejudice...but if the commencement of the action will be delayed for a lengthy period, without good cause, the defendant may be entitled to a dismissal although there may be no showing of special prejudice.' Id. at 254" (People v Sinagra, 15 Misc 3d 1146[A], 2007 NY Slip Op 51180[U], *5-6 [Sup Ct, Kings County 2007, Reichbach, J.] [emphasis added]).

As stated above, the delay in question is 31 months from the receipt of notification of Ruben Alexander's death by the NYC OCME to the Kings County District Attorney's Office until the defendant's instant indictment, exclusive of awaiting the autopsy report and time that grand jury operations were suspended due to the COVID-19 pandemic. The Court of Appeals has already found in Staley that a time of delay consisting of 31 months, without good cause for such a delay, constitutes an unreasonable delay in prosecution, requiring dismissal. (See also Singer [dismissal warranted for three-year delay in commencing prosecution without good cause].)

"The primary responsibility for assuring prompt prosecution rests with the prosecutors" (Staley at 793) and this responsibility is not abrogated absent an "acceptable excuse or justification" (id.). Ergo, the issue before this court is whether the reasons cited by the People for the delay in commencing the instant prosecution, pursuant to IND-71628-23, satisfy this good cause requirement.

The People's contention of their inability to present the instant case to a grand jury because of suspended operations due to the COVID-19 pandemic is rendered academic by virtue of this court's exclusion of the five-month period when calculating the time of delay. However, the People also cite to the pandemic as the cause of a sizable backlog of cases and investigations pending presentation to a grand jury, requiring prioritization, as well as the cause of a "large turnover of employees in the private and governmental sectors" (People's mem of law in opp to mot to dismiss at 2).{**80 Misc 3d at 472}

In addition, the People argue that the change in the New York State Criminal Procedure Law in 2020 overburdened prosecutorial agencies, adding to the number of resignations and in [*4]particular requiring the reassignment of the instant case multiple times. Despite that, the change in discovery and bail laws in 2020 did not come as a surprise to prosecuting agencies, including the Kings County District Attorney's Office.

Nonetheless, these are serious concerns and logistical issues for the Kings County District Attorney's Office, as well as other law enforcement agencies statewide, yet this is not a basis upon which a criminal defendant's constitutional rights can be abrogated. As such, this court finds that the existence of a backlog of cases, the decision to prioritize other cases ahead of the instant indictment, and a lack of staff for a penumbra of reasons do not constitute good cause for a delay in commencing the instant prosecution.

The People also list a loss of records and the need to reorder such records to proceed with the instant case. Law office failure is also unpersuasive to constitute good cause for the delay.

Wherefore, this court finds an unreasonable, inexcusable delay in commencing prosecution of the defendant pursuant to the instant indictment. As such, the defendant's motion pursuant to People v Singer (44 NY2d 241) and CPL 30.20 is hereby granted, and IND-71628-23 is dismissed and sealed.

This order is hereby stayed for 45 days for the People to determine whether to exercise their right to appeal.