All defendants have moved to dismiss the instant indictment pursuant to CPL §§ 30.30(1)(a) and 210.20(1)(g), on the ground that their statutory right to a speedy trial has been denied. In response to defendants' speedy trial motion to dismiss, the People submitted an Affirmation in Opposition and subsequently, a supplemental Affirmation in Opposition. Thereafter, all defendants, on different dates, submitted sur-replies to the People's supplemental affirmation in opposition. The Court has determined that the motion can be decided on the basis of the parties submissions and the court file [see People v Lomax, 50 NY2d 351; People v Varella, 164 AD2d 924].

On May 8, 2024, the defendants were arrested after a loaded pistol was found inside of a motor vehicle in which the defendants were present.

On May 9, 2024, a felony complaint charging defendants with Criminal Possession of a Weapon in the Second Degree under PL §265.03(3), and other related charges, was filed in Criminal Court of the City of New York, Bronx County.

On May 9, 2024, defendant Robinson was arraigned in Criminal Court on the felony complaint.

On May 10, 2024, defendants Paylor, Hicks and Lewis were arraigned in Criminal Court on the felony complaint.

On May 10, 2024, the People submitted a request to the Office of the Chief Medical Examiner, (OCME) to have the firearm recovered swabbed for DNA testing (People's Exhibit 1).

On May 16, 2024, the grand jury indicted defendants for the crime of Criminal Possession of a Weapon in the Second Degree, [PL 265.03(3)] and other related charges.

On May 30, 2024, OCME issued a written report indicating that the samples obtained from the firearm were suitable for comparison.

On May 31, 2024, the indictment was filed and the case was transferred to Supreme Court.

On June 6, 2024, defendants were arraigned in Supreme Court and pursuant to defendants' request, an omnibus motion schedule was set. Defendants' motions were due on June 27th, 2024, the People's response on July 18th, 2024 and the matter was adjourned for decision to August 1, 2024.

On June 21, 2024, the People filed and served a motion to compel the collection of DNA swabs from defendants.

On August 1, 2024, the court issued its decision regarding defendants' omnibus motions and granted the People's motion to compel and defendants' cross motions for protective orders.

On August 14, 2024, the assigned ADA emailed all defense attorneys to schedule their clients to be swabbed for DNA

On August 22, 2024, after not receiving any response from the defense attorneys, the ADA sent a follow-up email regarding scheduling dates for defendants to be swabbed.

Pursuant to email exchanges between the prosecutor and the four defense attorneys, (People's Exhibits 2,3,4 and 5) regarding the scheduling of the DNA swabs: on August 27, 2024, defendant Hicks was swabbed; on August 28, 2024, defendant Paylor was swabbed; on September 3, 2024 defendant Robinson was swabbed and finally, on October 7, 2024, defendant Lewis was swabbed.

On October 10, 2024, the prosecutor was informed by OCME that there was a "significant event" at their lab requiring them to conduct a "root cause analysis" and that as a result there would be a pause on the release of DNA reports "until further notice".

On January 21, 2025, DNA results were received for defendants Paylor and Hicks.

On January 25, 2025, DNA results were received for defendant Robinson.

On February 13, 2025, the prosecutor sent an email to the Bronx DA Forensic Sciences Unit to reach out to the OCME to inquire about the outstanding DNA report for defendant Lewis and inform them of the next court date of March 13, 2025 (People's Exhibit 6).

March 11, 2025, DNA results were received for defendant Lewis.

On April 9, 2025, the People filed their Certificate of Compliance (COC) and Statement of Readiness. The COC indicates that the OCME DNA reports were disclosed to the attorneys as they were received by the People.

Defendants' claim that other than the time that was excludable for motion practice, the People should be charged with speedy time trial time from the commencement of the case, until they filed their Certificate of Compliance on April 9, 2024, (270 days). In relevant part the defense argues that PL §30.30(4)(g), which excludes speedy trial time for "exceptional circumstances" should not be applied since the People did not act with "due diligence" in obtaining the DNA results from OCME after the prosecutor was notified about the "significant event" causing a pause of the release of DNA reports. The defense further claims that their speedy trial motion should be granted because the People could have filed their COC before they received the final DNA reports.

The People argue that they acted with "due diligence" with respect to their efforts to obtain DNA evidence and the receipt of the final OCME lab results and as such, all the time that expired during that process should be excludable as "exceptional circumstances" under CPL [*2]§30.30 (4)(g). Therefore, the People contend that the only time that is chargeable to them is the period after the People received the last of the DNA results on March 11, 2025, to when the People filed their COC and stated ready for trial on April 9, 2025, (29 days).

The Court, having reviewed all the written submissions and after careful consideration, the decision is as follows:

The time period within which the People must answer ready for trial when at least one charged offense is a felony is prescribed by CPL §30.30(1)(a), which provides that such period is six months from the commencement of the criminal action. The commencement of the criminal action refers to the filing of the first accusatory instrument [see CPL §1.20(17); People v. Lomax, 50 NY2d 351, 355-356 (1980)], which in this case was on May 9, 2024. The speedy trial time calculation begins running the day after commencement of the criminal action [People v Stiles, 70 NY2d 765, 767 (1987)]. Consequently, the People had six (6) months, or one hundred and eighty-three (183) days, from May 9, 2024 to be ready for trial.

To establish a violation under CPL §30.30 a defendant bears the initial burden to allege an unexcused delay in excess of the statutory maximum time period [People v Luperon, 85 NY2d 71, 77-78 (1995); People v. Santos, 68 NY2d 859, 861 (1986)]. Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded [see People v Berkowitz, 50 NY2d 333, 349 (1980); People v. Fields, 214 AD2d 332, 332 (1st Dept 1995)].

Certain periods of time within which the People must be ready for trial are excludable [see CPL §30.30(4)]. The Court of Appeals in People v.Cortes, 80 NY2d 201, explained the procedure to be used when calculating whether the People satisfied their speedy trial obligation pursuant to CPL 30.30(1)(a). Specifically, the Court stated, "Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any post readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" [see also People v Anderson, 66 NY2d 529, 535-536 (1985)].

On May 9th, 2024, the criminal court complaint was filed against all defendants. As such, the time period between May 10th, 2024 to the defendant's arraignment on the indictment in Supreme Court on June 6, 2024 is chargeable to the People, (see People v. Brown, 207 AD2d 556). Although, on May 10, 2024, the People had made a request to OCME for DNA testing on the firearm, it is apparent that DNA evidence was not needed for the People to proceed, at that juncture, since the matter was presented to the grand jury, (with a lesser standard of proof required at trial), without DNA evidence resulting in the instant indictment. Thus, this period of time is not excludable under CPL §30.30(4)(g); (see People v. Rodriguez, 59 Misc.4d 1212(A)).

June 6, 2024 to August 1, 2024: 0 days chargeable

On June 6, 2024, in Part 31 all the defendants were arraigned on the indictment. At the [*3]request of the defense, an omnibus motion schedule was set, and the case was adjourned for court decision to August 1, 2024. In the interim on June 6, 2024, the People filed a motion to compel DNA buccal swabs from the defendants. On August 1, 2024, the court issued decisions with respect to the omnibus motions and granted the People's motion to compel DNA swabs from the defendants and defendants' cross motions for protective orders. This adjournment period is excludable pursuant to CPL §30.30(4)(a) because it encompassed a period for motion practice (see CPL §30.30 (4)(a); People v. Worley, 66 NY2d 795).

August 1, 2024 to March 11, 2025: 0 days chargeable:

During this period of time, the matter was adjourned multiple times in Part 31 for the People's COC. However, during these adjournments, there was also robust activity regarding the People's attempt to obtain DNA evidence.

CPL§ 30.30(4)(g), provides, in pertinent part, that the following period of time is excludable from speedy trial calculation:

" . . . periods of delay occasioned by exceptional circumstances . . . because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period . . . " (emphasis added).

Due diligence and Exceptional Circumstances

Here, the People swiftly made efforts to commence the procedures for DNA testing. In fact, on the same day that defendants Paylor, Hicks and Lewis were arraigned, May 10, 2024, the assistant district attorney, (ADA) immediately submitted a request to OCME for DNA testing on the vouchered firearm. In a reasonable time thereafter, after receiving a report from OCME that the DNA samples recovered from the firearm were suitable for testing, the prosecutor timely filed a motion to compel DNA swabs from the defendants. After the court granted the People's motion to compel, on August 14, 2024, the ADA emailed the defense attorneys to schedule their clients to be swabbed. On August 22, 2024, after not receiving any responses from the defense, the prosecutor sent a follow up email to the attorneys. Subsequently, after a series of emails were exchanged between the prosecutor and defense attorneys, (People's Exhibits 2, 3, 4 and 5), mutually agreed upon times were scheduled for each defendant to be swabbed on different dates, as indicated above in the procedural history, with defendant Lewis being the last on October 7, 2025 (cf. in sharp contrast to the efforts made by the ADA in the instant case, in People v. Clarke, 28 NY3d 48, the Court found that the People failed to exercise due diligence in obtaining the defendant's DNA swab to conduct comparative testing with the DNA evidence obtained from the gun when the People waited almost 9 months after the indictment and approximately 16 months after the felony complaint was lodged to file a motion to compel a DNA buccal swab from the defendant; (see also People v. Cox, 139 AD3d 1083, [prosecution waited 15 months after the defendant was indicted to file a motion to compel for a buccal swab]; People v. Gonzalez, 136 AD3d 581, [prosecution waited 7 months after defendant's arrest to test the gun for DNA]).

Critically, in the instant matter, the DNA process was delayed because just three days after defendant Lewis was swabbed the prosecutor was informed by OCME that there was a "significant event" at their lab requiring them to conduct a "root cause analysis". Clearly, this unforeseen development concerned evidence that is undisputedly "material to the People's case" inasmuch as the indictment charges all defendants with criminal possession of a firearm [*4]recovered inside of a motor vehicle.

The defense assertions that the exclusion of speedy trial under CPL §30.30(4)(g) should, nevertheless, not apply because the prosecutor did not act with "due diligence" in following up with OCME about the status of the problem at the lab between the date of her notification of it on October 10, 2024, to the time when OCME began to submit DNA lab reports for defendants in late January, 2024 - is unreasonable in light of the unusual circumstances in this case. Firstly, since OCME informed the ADA that there would be no DNA reports available "until further notice" there was a reasonable expectation that OCME would be notifying the DA's office when their problem at the lab was rectified.^[FN1] Further, since it is widely known that OCME is the well-established organization that is solely responsible for DNA analysis with respect to all criminal matters in New York City, there was no legitimate reason for the prosecution to doubt that OCME would expeditiously address their problem at the lab in order fulfill their vital obligations to produce DNA reports within "a reasonable time". Additionally, although the exact nature of the situation at the OCME lab was not revealed, since OCME indicated that their problem was "significant", it cannot be said that the approximate 3-month delay before OCME resumed sending out DNA reports was extraordinarily protracted.

Moreover, at that point, as previously described, the People had vigorously taken all the steps necessary to have the DNA tested before the delay occurred at OCME — which is an independent agency beyond the control of the People (see People v. Price, 14 NY3d 61 [allowing application of the CPL § 30.30 (4) (g) exclusion when "the People for practical reasons beyond their control cannot proceed with a viable prosecution, see e.g. People v. Washington, 43 NY2d 772; People v. Ziropla", 57 NY2d 706). Finally, upon the receipt of each DNA report, the prosecution promptly served each respective defense attorney with it as indicated in their COC.

Thus, based on the totality of the rather unique circumstances in this case and taking into consideration the totality of the People's efforts, the Court concludes that the People acted in good faith and with due diligence in obtaining all the DNA evidence and final reports from OCME.

As to defendants' argument that their speedy trial motion should be granted because, pursuant to CPL § 245, the People could or should have filed their COC prior to their receipt of the final DNA results from OCME — alas, that is not determinative. Rather the exclusion under CPL §30.30 (4)(g) for "exceptional circumstances" governs whereas, here, as explained above, the statutory requirements of this provision have been satisfied.^[FN2]

Therefore, the time period between August 1, 2024, the date the court granted the People's motion to compel DNA buccal swabs from the defendants and March 11, 2025, when the last DNA report was submitted by OCME is excludable due to "exceptional circumstances" under CPL §30.30 (4)(g);(see People v. Henderson, 28 NY3d 63; People v. Hamilton, 159 AD3d 559; People v. Lathon, 120 AD3d 1132;People v. Banks, 83 Misc 3d 559; People v. Dunnmeyer, 81 Misc 3d 1213(A) [approximate 2 month adjournment between court decision granting motion to compel buccal swab and receipt of DNA evidence excludable under CPL 30.30 § 30.30(4)(g)]).

March 11, 2025 to April 9, 2025: (29 days chargeable)

The People concede that this period of time after they received the last DNA report on March 11, 2025, to when they stated ready for trial on April 9, 2025, is chargeable.

April 10, 2025 to September 4, 2025: (0 days chargeable)

On April 10, 2025, in Part 31, all defendants indicated that they were going to file CPL §30.30 motions to dismiss the indictment and on subsequent dates, did so (see People v. Reed, 19 AD3d 312 [defense attorney's stated intention to file 30.30 motion stopped the speedy trial clock when subsequently such motion was filed]). Thereafter, the People filed their affirmations in opposition ^[FN3] followed by sur-replies from all defense attorneys. The matter was adjourned for Court decision to September 4, 2025, in Part 31. Thus, this period which encompassed motion practice and the Court's decision is excludable under CPL 30.30 §(4)(a); (see People v. Worley, supra).

Thus, a total of fifty-six (56) days are chargeable to the People. Accordingly, since this period of time is less than the six months (183 days) statutory limit in which the People must be ready for trial, defendant's motion to dismiss the indictment pursuant to CPL §§ 30.30(1)(a) and 210.20(1)(g) is denied.

Order entered accordingly.

This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.