Supreme Court, Kings County, January 26, 2024

Brooklyn Defender Services (Andrea Moletteri and Clinton Hughes of counsel) for defendant.

Eric Gonzalez, District Attorney (Cassandra Pond of counsel), for the People.

Calvin Grant (hereinafter: defendant) is charged, pursuant to Kings County indictment IND-02631-19, with the crime of murder in the second degree (Penal Law § 125.25 [1]). 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. The People oppose the defendant's instant motion in its entirety and this court ordered a hearing pursuant to People v Singer (44 NY2d 241 [1978]) (hereinafter: Singer hearing).

The People allege that on April 11, 1992, the defendant shot and killed Stacey Joyner (hereinafter: decedent) on the rooftop of 23-25 New Lots Avenue, in Kings County. The decedent was found at the locus in quo by security guards who responded to the sound of gun shots. Police recovered ballistic evidence, but were unable to recover any additional forensic evidence, such as latent fingerprints, at that time. In addition, there was no surveillance video of the shooting.

On April 11, 1992, detectives learned that the defendant was alleged to be in possession of a firearm, belonging to Antoine Smith, which was the same caliber as the murder weapon. Although witnesses observed the defendant in the vicinity of the homicide on April 11, 1992, no witness observed the defendant on the rooftop near or during the time of the homicide. The defendant was interviewed by police on April 12, 1992, and admitted to possession of Antoine Smith's firearm, but did not make any inculpatory statements concerning the homicide. Rather, [*2]the defendant admitted taking the firearm from Smith and selling it for drugs. Despite police attempts to identify and locate additional witnesses, none were found. As a result, no police action was taken at that time.{**82 Misc 3d at 993}

At autopsy a postmortem kit was performed of the decedent's body, and subsequently semen was detected on oral swabs of the decedent. No additional forensic testing was performed at that time.

Approximately 26 years later, in February of 2018, Det. Dewhurst was contacted by an unnamed employee of the Office of Chief Medical Examiner (hereinafter: OCME), who informed the detective that the Forensic Biology Laboratory at the OCME was in possession of biological samples collected in the instant case that were untested for DNA. Det. Dewhurst retrieved the original file from the archives of the New York City Police Department's (hereinafter: NYPD) 73 Precinct Detective Unit (hereinafter: 73 PDU) and attempted to locate the original witnesses.

On March 23, 2018, the Office of the Kings County District Attorney (hereinafter: KCDAO) formally requested that the OCME test the recovered semen-positive oral swab to determine if a DNA profile could be generated. The OCME issued a report on June 20, 2018, finding a discernable DNA profile, labeled "Male Donor A." Thereafter, on June 25, 2018, the OCME received notification that the DNA labeled "Male Donor A" developed from the semen-positive oral swab, collected from the decedent postmortem, matched the DNA for the defendant which was on file in the New York State DNA Index System (hereinafter: state DNA database). The defendant's DNA profile had been uploaded to the state DNA database following a conviction for an unrelated offense in 2004.

On January 24, 2019, the defendant was apprehended on an unrelated matter and, after being reinterviewed and providing the same information as when he was initially interviewed in 1992, was arrested on the instant matter. Initially, this defendant was indicted by a Kings County grand jury, pursuant to Kings County indictment IND-00327-19, which was filed on January 24, 2019, for the charge of murder in the second degree (Penal Law § 125.25 [1]). After arraignment on that indictment, on April 6, 2019, this court dismissed said indictment for defects in the grand jury presentation. With leave of this court, the case was re-presented to a different grand jury and, on May 7, 2019, the defendant was indicted for a second time, pursuant to Kings County indictment IND-02631-19. The defendant was arraigned on IND-02631-19 on June 14, 2019, at which time the defendant pleaded not guilty to the sole count on the indictment.{**82 Misc 3d at 994}

On January 19, 2023, counsel for the defendant filed a motion pursuant to Singer, seeking dismissal of the instant indictment based upon unreasonable pre-indictment delay. The People opposed the defendant's motion and this court ordered a hearing.

This court conducted said hearing on July 25, September 14, and November 9, 2023. The People called three witnesses at the hearing: Dr. Craig O'Connor (hereinafter: Dr. O'Connor), Deputy Director of the laboratory for the OCME; Detective Robert Dewhurst (hereinafter: Det. Dewhurst), a 31-year member of the NYPD assigned to the Cold Case Squad; and criminalist Jeffrey Suckow (hereinafter criminalist Suckow), a civilian employee of the NYPD assigned to the NYPD lab's Firearms Analysis Section. The defense did not call witnesses, but did cross-examine the People's witnesses. The parties then argued the motion orally and supplemented that argument with written submissions.

For the reasons stated below, defendant's motion to dismiss the instant indictment [*3]pursuant to Singer is hereby granted.

Dr. Craig O'Connor testified as follows:

Dr. O'Connor began his career with the OCME in May of 2008 as a criminalist level II, analyzing crime scene evidence. Currently, he is assigned to the Department of Forensic Biology as the Deputy Director of the laboratory, a position that he assumed in August of 2022. In that role Dr. O'Connor supervises the case-work process and the laboratory, and manages assistant directors and criminalists. Dr. O'Connor also serves as a DNA technical leader, responsible for supervising the technical process, bringing techniques online, assuring procedures meet accreditation standards, educating and training employees, and overseeing quality control within the laboratory.

Dr. O'Connor received a Bachelor of Science in physiology and neurobiology, a master's degree in science, and a PhD in genetics and genomics. In addition to this formal education, Dr. O'Connor has undergone numerous internal and external training sessions and workshops on topics relevant to his professional area of practice. Dr. O'Connor is a member of several professional organizations and has personally performed DNA analysis thousands of times, having authored DNA analysis reports and reviewed reports by other analysts, hundreds of thousands of times.{**82 Misc 3d at 995}

As Deputy Director of the laboratory, Dr. O'Connor is familiar with not only the current protocols and procedures of the Forensic Biology Laboratory of the OCME, but historic methods as well. Prior to the instant hearing the doctor has testified, approximately 85 times, about the OCME's procedures and DNA analysis in courts throughout New York, New Jersey and Connecticut, in state and federal jurisdictions. Dr. O'Connor was deemed an expert witness at the hearing, in the areas of forensic DNA analysis, the statistical significance of DNA testing and the history of DNA testing, without objection by the defense.

According to Dr. O'Connor's testimony, the Serology Department of the OCME became the Department of Forensic Biology in 1992 when it began DNA testing.^[FN1] In April of 1992, the OCME began using the HLA-DQ alpha method of DNA testing and analysis. This method resulted in a DNA profile which could be compared against known individuals to determine if the profiles matched one another or not. Since 1992, as DNA testing technology evolved, analysts can utilize smaller amounts of a sample to generate a DNA profile. In 1995 or 1996 the OCME began to employ the restriction fragment link polymorphism (hereinafter: RFLP) method of DNA analysis^[FN2] and in 1996 transitioned to the standard polymerase chain reaction (hereinafter: PCR) based short tandem repeat (hereinafter: STR) testing, which is commonly used today. As of 1998 the technology utilized by the OCME for DNA testing and analysis evolved to the point where they were capable of generating DNA profiles from saliva samples, where previously blood or other more densely concentrated bodily fluids were required. This increased sensitivity in the testing process allowed for the use of abandonment samples or pseudo-[*4]exemplars to generate known DNA profiles.

The Federal Bureau of Investigation did not establish the Combined DNA Index System (hereinafter: CODIS) until 2000 to record identified DNA profiles for comparison to unknown samples. No other databank was in existence until this time.

Dr. O'Connor then testified that the OCME received items of evidence for testing related to the homicide death of the{**82 Misc 3d at 996} decedent on April 11, 1992, and the Forensic Biology Laboratory assigned OCME Forensic Biology Number: FB92-0624^[FN3] to that evidence, for identification purposes. Testing of oral swabs taken from the decedent revealed the presence of semen. At the time of testing, since there was no known sample to compare the semen-positive oral swab to, HLA-DQ alpha testing was not performed on the sample to generate a DNA profile. Dr. O'Connor did testify that if a known sample was taken from the defendant in 1992 and analyzed using HLA-DQ alpha testing, the OCME would have been able to determine that the defendant's DNA profile matched the semen-positive oral swab.

In 2018, the OCME received a request that additional testing be performed on the semen-positive oral swab. According to a report contained within the OCME case file, dated June 20, 2018, DNA testing was performed and a 19-locus DNA profile, titled "Male Donor A," was identified. The DNA profile for "Male Donor A" was then uploaded into the CODIS database and on June 25, 2018, the OCME was notified that the DNA profile matched the known DNA profile of the defendant, a convicted offender on record in the state DNA database. According to the notification, the defendant's DNA profile was previously uploaded to the state DNA database in 2004. The OCME does not have direct access to the state database, this is a system operated by the New York State Department of Criminal Justice Services (hereinafter: DCJS). As such, the OCME is unable to search that database and must await notification of any matches to DNA profiles on record, after such matches are identified by DCJS.

Subsequently, on March 21, 2019, the OCME received a known DNA sample from the defendant for analysis and comparison to the DNA profile generated from the semen-positive oral swab of the decedent. The Forensic Biology Laboratory assigned OCME Forensic Biology Number: FBS19-01227^[FN4] to the sample, for identification purposes. Upon comparison of the sample identified as FBS19-01227 to the evidence identified as FB92-0624, in a report dated April 22, 2019, the OCME determined that the defendant's DNA profile matched the DNA profile of "Male Donor A."{**82 Misc 3d at 997}

Dr. O'Connor noted in his testimony that, had HLA-DQ alpha analysis been performed on the semen-positive sample in 1992, it would not have been allowed to be uploaded in the CODIS database, when that system became operational, because HLA-DQ alpha utilized techniques and markers that are not compatible with the CODIS database. Rather, CODIS requires STR based profiles, such as RFLP generated profiles, which were available as of 1996.

The doctor also noted that the OCME does not have sufficient logistical resources to automatically test samples that were previously tested using earlier technology or untested, due to the sheer volume of cases and limited personnel, when updated techniques or protocols [*5]become operational. Such testing must be requested.

Detective Robert Dewhurst testified as follows:

At the time of the instant hearing Det. Dewhurst had been a member of the NYPD for 31 years, being assigned to the Cold Case Squad for the last 14 years of his police career. The Cold Case Squad is a citywide unit and on average a detective assigned to that squad handles a caseload of approximately 13 to 17 cases. Currently, there are 12 to 14 detectives assigned to the NYPD's Cold Case Squad.

Det. Dewhurst testified that there are approximately 6,000 unsolved homicides in the City of New York from calendar year 1992 to present. In order for a case to be investigated by the Cold Case Squad the case, whose leads were previously exhausted, would come to the squad's attention from a previously assigned detective or by prompt of a decedent's family member or other interested party.

Sometime in February 2018, Det. Dewhurst became involved in the homicide investigation of the decedent when he received a call from an unidentified person^[FN5] at the OCME's Forensic Biology Laboratory, informing the detective that the OCME had untested vaginal swabs from the decedent. The detective testified that approximately a day or so later, on February 15, 2018, Det. Dewhurst went to the NYPD's 73 PDU and recovered the original case file from the homicide investigation. After receiving and reviewing the file, Det. Dewhurst determined that the matter had not been reviewed by any other Cold Case Squad detective prior to his involvement in February 2018.{**82 Misc 3d at 998}

Based upon the detective's review of the file, Det. Dewhurst testified^[FN6] that in 1992 the locus in quo was processed by the NYPD's Crime Scene Unit, witnesses were interviewed, and ballistic evidence was analyzed. No latent fingerprints or surveillance video was discovered, yet based upon the police investigation in 1992, the defendant was developed as a person of interest, based upon statements made by witnesses on April 11, and April 12, 1992. The defendant was interviewed by the then case detective, Detective Hutcherson (hereinafter: Det. Hutcherson), on April 21, 1992. In his statement to Det. Hutcherson, the defendant stated that he took a gun from Antoine Smith and later sold that gun for drugs. The defendant did not make any inculpatory statements concerning the homicide of the decedent. Although several pieces of evidence collected from the crime scene and during the autopsy were not tested, such as underwear and fingernail scrapings, police determined that all existing leads were exhausted, so the police requested media attention in search of additional witnesses. No other witnesses came forward or were identified and the case remained unsolved. Based upon Det. Dewhurst's review of the file, all leads were exhausted in 1992 and nothing more could have been done at that time.

Between 1992 and 2018, the detective confirmed that no police officer or member of the district attorney's office attempted to obtain a DNA sample from the defendant, either by consent or court order. In addition, no other potential suspects were investigated.[*6]

In 2018, Det. Dewhurst reinterviewed witnesses and requested DNA testing. Ultimately, the detective was notified that a DNA profile was generated and matched the known DNA profile of the defendant. The defendant was arrested on January 24, 2019. Upon the defendant's arrest he was interviewed by police and provided a statement consistent with his 1992 statement, admitting possession and sale of a gun for drugs, but not admitting to any involvement in the homicide.

Criminalist Jeffrey Suckow testified as follows:

Criminalist Suckow is a supervising criminalist and civilian employee of the NYPD laboratory, and has worked in the NYPD laboratory in various capacities since 2009, including maintaining equipment, quality assurance addressing matters related{**82 Misc 3d at 999} to laboratory accreditation, and internal training. Currently, criminalist Suckow supervises the National Integrated Ballistic Information Network (hereinafter: NIBIN) team of the Firearms Analysis Section of the NYPD laboratory.

Criminalist Suckow holds a bachelor's and master's degree in forensic science and has received specialized training in the analysis of controlled substances, the examination of firearms and ballistic evidence and the proper procedure for uploading information to NIBIN, inclusive of NIBIN triage and correlations. NIBIN encompasses the Integrated Ballistics Identification System (hereinafter: IBIS), which is used to capture and acquire images of cartridge casings that were uploaded to the cataloging system. This system then compares uploaded images of ballistic evidence, by employing an algorithm, and notifies investigators of potential matches. Criminalist Suckow has testified approximately 10 times prior to the instant hearing in the courts of Kings and Queens Counties of New York State. Criminalist Suckow was deemed an expert in firearms operability and in the NIBIN system, without objection by the defense.

Upon review of the ballistics reports generated from the investigation into the instant matter in 1992, criminalist Suckow testified that two recovered shell casings were recovered and compared manually, not using the IBIS or NIBIN systems. It was the determination of the analyst that both shell casings were discharged from the same firearm. Subsequently, in 2019, microscopic comparison of the recovered shell casings was performed again, manually, with the same result by a different examiner. The shell casings were not compared to any firearms.

Although the NYPD began using the IBIS system on December 3, 1997, the NYPD did upload images of ballistic evidence recovered from homicides, assaults and test fires from calendar years 1995 and 1996. The NYPD transitioned to the NIBIN system sometime in the first decade of the 2000s. Images predating 1995 were not regularly uploaded into the system; however approximately 100 to 200 images are available from the time period of 1977 to 1995. Criminalist Suckow cites limited personnel and logistical issues, which impair the NYPD's ability to upload images of ballistic evidence recovered prior to 1995.

Images from the shell casings recovered in connection with this instant homicide investigation were not uploaded into the IBIS or NIBIN systems.{**82 Misc 3d at 1000}

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; [*7]CPL 30.20; US Const Sixth & Fourteenth 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 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 at least 14 years, from 2004 when the defendant's DNA profile was uploaded to the state DNA database and available for comparison, to 2018 when the police requested DNA analysis of the semen-positive oral swab. As borne out in the testimony adduced at the hearing, the police exhausted all available leads in 1992; as such the period from 1992 to 2004 cannot be considered a period of delay as contemplated in Singer and Taranovich. However, the proffered reasons why the defendant's DNA was not tested prior to 2018, a veritable logistical impossibility due to a lack of resources at the NYPD and the OCME, are not a legally cognizable excuse or exception resulting in the temporal exclusion of additional time beyond 2004.

The underlying charge is of the most serious nature, murder in the second degree (Penal Law § 125.25 [1]), a class A-I felony offense.

The defendant has been incarcerated on this matter for approximately five years since his arrest on January 24, 2019. Yet, this court does take into consideration that the impact of the worldwide COVID-19 pandemic has played a considerable role in the length of this defendant's pretrial detention.{**82 Misc 3d at 1001}

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 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 14 years, from the point when the defendant's DNA profile was available in the state DNA database for comparison to the biological material recovered at autopsy of the decedent. As stated above, although the [*8]defendant was considered a person of interest in 1992, this period of delay excludes the time from when all leads were exhausted in 1992 to the availability of the defendant's DNA profile in 2004. 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 satisfy this good cause requirement.{**82 Misc 3d at 1002}

The government argues and the OCME contends that it is virtually impossible, due to a lack of sufficient logistical and personnel resources, to test all biological samples for their inclusion in the CODIS system. Moreover, the NYPD relies on similar logic when rationalizing why ballistic evidence recovered prior to 1995 cannot be regularly uploaded to the IBIS and NIBIN systems. In addition, with thousands of unsolved cases, the limited resources of the NYPD's Cold Case Squad can only investigate cases that are brought to their attention, while countless others go uninvestigated for decades.

Although logistical constraints are practical issues and hardships faced by numerous agencies, this is not, and cannot be, a basis upon which a criminal defendant's constitutional rights can be abrogated. As such, this court finds neither the failure to perform DNA analysis on the semen-positive oral swab prior to 2018, nor the fact that the instant case sat dormant until an unidentified person from the OCME contacted the NYPD about untested evidence, constitutes good cause for a delay in commencing the instant prosecution. In addition, the People fail to raise any fact that could constitute good cause, during the time period in question, necessary to justify a delay in prosecution.

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-02631-19 is dismissed and sealed.

As a result of this court's instant decision and order, the pending motion to preclude surrogate testimony is hereby rendered moot.

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