By indictment number 3339/18, the defendant is charged with Murder in the Second Degree, inter alia, related to a 2015 homicide, and with Criminal Possession of a Weapon in the Second Degree, inter alia, related to a 2018 incident and arrest. Background The defendant was arrested on April 29, 2018 for possession of a loaded 9mm pistol and possession of drugs. Prior to this arrest an I-Card had been issued for the defendant regarding an unrelated 2015 homicide. In a Mirandized videotaped statement, following his 2018 arrest for the weapons and drugs, the defendant, in sum and substance, confessed to having shot and killed Steven McCoy in 2015. The defendant was formally arrested and charged with the McCoy homicide on May 2, 2018. The defendant was arraigned in Criminal Court on May 2, 2018, on both the 2015 homicide (Docket 2018KN020311) and the 2018 weapons possession and drug charges (Docket 2018KN021310). The defendant was remanded on both. On May 4, 2018 the Grand Jury voted the instant indictment for both the 2015 homicide and the 2018 weapons possession and drug charges. The indictment was filed on May 8, 2018 along with a statement of readiness. On May 18, 2018, the defendant was arraigned on the indictment in Kings County Supreme Court, Part 7, the People announced ready for trial, the defendant’s remand status was continued, and the case was adjourned for motion practice.1 On June 3, 2021, the defendant filed the instant motion to dismiss the indictment, alleging a violation of his right to due process and speedy trial as guaranteed by the United States and New York Constitutions, and New York Criminal Procedure Law Section 30.20.2 The People opposed the defendant’s motion in a reply dated July 9, 2021 and in two supplemental replies, dated, respectively, December 5, 2021 and January 5, 2022. The defense filed a sur-reply, dated February 7, 2022, on February 9, 2022, asserting that the People had not established good cause for the pre-indictment delay. At the defendant’s urging, this Court ordered a Singer hearing concerning the issues raised by the defense regarding the pre-indictment delay in the homicide case. On June 8, and July 5, 2022 this Court conducted the aforementioned hearing. Detective Alexander Grandstaff of the New York City Police Department (NYPD) testified for the People. The defendant did not present any evidence. At the conclusion of the hearing the case was adjourned for oral arguments at the request of the parties. Oral arguments were heard on July 28, 2022. The Court credits the testimony of Detective Grandstaff and makes the following findings of fact and conclusions of law. Findings of Fact The Hearing on Pre-indictment Delay Detective Grandstaff testified that he has been employed by the NYPD for approximately 24 years, currently assigned to the Brooklyn North Homicide Squad. On April 19, 2015, he was assigned to assist Detective Lahens from the 75th Precinct with an investigation into the homicide of Steven McCoy.3 Detective Grandstaff responded to the scene of the homicide with other detectives. They conducted interviews of potential eyewitnesses, individuals present at or near the scene, and 911 callers. They canvassed the vicinity for, and recovered, video surveillance from a number of locations. Specifically, Detective Grandstaff interviewed an individual identified as Confidential Witness 3 (CW3) at the scene.4 Although CW3 indicated he/she could make an identification, Detective Grandstaff felt there was something “off” about the witness (Tr. 7/5/22 at 30). During a second interview at the precinct with CW3, it became clear to Detective Grandstaff that CW3 was mentally “slow” (Tr. 7/5/22 at 31) and was “looking to be more helpful than able” to make an identification (Tr. 7/5/22 at 28).5 Detective Grandstaff continued the investigation. After learning that the video surveillance recovered was not suitable for facial recognition software analysis, on April 22, 2015 a flier, depicting two pictures, one of each of the alleged shooters, from the video surveillance with a caption that the police were looking for assistance with the homicide, was circulated. These fliers, akin to wanted posters, were distributed to police precincts and, via a subsequent media request, circulated in the relevant communities in the hopes that someone would be able to provide information. The police never received any response to the fliers. On May 1, 2015, Detective Grandstaff debriefed another witness, Confidential Witness 1 (CW1), who stated that on April 19, 2015 he/she was around the corner from where the homicide took place and that a male, he/she identified as “Manny” menaced him/her with a firearm before the shooting. CW1 stated that although he/she did not observe the shooting he/she did hear gunshots approximately 15-20 minutes after being menaced by “Manny.” CW1 also told Grandstaff the block where Manny lived and his general description. After further investigation Detective Grandstaff was able to identify “Manny” as Manuel Adames and, as a result, was able to prepare a photo array.6 On May 3, 2015, Detectives Lahens and Brooks showed the photo array to CW1 who identified the photo of Manuel Adames as “Manny” who menaced him/her on April 19, 2015 but offered no information regarding defendant’s role, if any, in the homicide. CW1 refused to sign or mark the photo array or make a statement to the District Attorney’s office and refused to cooperate any further. Based on CW1′s refusal to cooperate, the defendant was not arrested for menacing CW1. And, the police still did not have probable cause to arrest defendant for the homicide. During the ensuing months the police continued to investigate the homicide, specifically by conducting debriefings of individuals arrested within the confines of the 75th precinct to learn whether anyone had any information regarding the crime. None of the debriefings resulted in any information related to the homicide. Although no additional information had been obtained by the police since the May 3, 2015 photo array, on August 20, 2015 Detective Grandstaff issued an I-Card indicating “suspect, no probable cause” after being “instructed to by one of [his] supervisors”7 (Tr. 6/8/22 at 28). On February 26, 2016 the defendant was arrested within the confines of the 75th Precinct and charged with weapons and drug offenses unrelated to the 2015 homicide. Although Detective Grandstaff was notified of the defendant’s arrest based upon the active I Card, the defendant requested an attorney in relation to his gun and drug arrest and, as such, the defendant could not be interviewed regarding either matter. As the investigation continued a “witness” I-Card was issued for an individual identified as Confidential Witness 4 (CW4) who was believed to have been present at the time of the homicide. On July 7, 2016, CW4 was at the 75th Precinct on an unrelated matter. When the homicide was broached by a detective, CW4 indicated that he/she would come back to be interviewed regarding the homicide on a future date, but never did. Between 2016 and 2018, in addition to the previously discussed investigation, namely: fliers, debriefings, attempts to locate, interview or reinterview witnesses, the police also continued to look for possible ballistics matches to the gun used in the homicide.8 None of the above yielded any useful information regarding the homicide. On April 29, 2018, the defendant was arrested for yet another unrelated weapons and drug possession matter, again in the 75th Precinct. Based on the determination that all other leads had met with negative results, the decision was made to attempt to speak to the defendant regarding the homicide. During the interview, conducted by Detectives Veliz and Newton of the 75th Precinct on April 30, 2018, the defendant identified himself in surveillance video and confessed to the 2015 homicide. On May 2, 2018, the defendant was charged with the 2015 homicide. Based upon a review of the Supreme and Criminal Court files, relevant transcripts, the papers filed by the parties, the hearing testimony of Detective Grandstaff, and post-hearing oral arguments, the motion to dismiss is denied. Discussion The defendant moves this Court to dismiss the indictment on Constitutional due process and speedy trial grounds.9 The defendant argues that there was three years of pre-indictment delay, as to the 2015 homicide, in violation of his due process right to a prompt prosecution. He further argues that there was three years of post-indictment delay for both the homicide and weapons possession and drug charges in violation of his Constitutional right to a speedy trial. See also, C.P.L. §30.20. The defendant was arrested on April 29, 2018 and has remained in custody ever since.10 The defendant asserts that he was identified by detectives in the 75th Precinct for the McCoy homicide based upon a photo array in May 2015 that subsequently resulted in the generation of a New York City Police Department (NYPD) “suspect, no probable cause” I-Card on August 20, 2015. The defendant was arrested for Criminal Possession of a Controlled Substance (P.L. §220.16[1]) Criminal Possession of a Weapon in the Second Degree (P.L. §265.03 [1][b]) and related charges in February of 2016 within the confines of the 75th Precinct. Defendant argues, that at the time of that 2016 arrest, the I-Card was still active, and, there was “no apparent reason” for the police not to question him regarding the homicide at that time. As such, the defendant asserts that the People did not have a good faith basis to delay charging him with the homicide until 2018. Specifically, the resulting three-year pre-indictment delay in the homicide case prejudiced him to the extent that his recollection of his whereabouts at the time of the 2015 homicide have faded and his ability to contact anyone who might have been with him, as an alibi or otherwise, has been impaired by the passage of time. His ability to recall persons, places and things when he was arrested in 2016 would not have been as diminished as it was in 2018, and the delay, therefore, prejudiced his ability to prepare his defense. Constitutional Due Process Right to a Prompt Prosecution: Pre-Indictment Delay In determining whether a defendant’s Constitutional due process rights have been violated, a court must consider: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” People v. Taranovich, 37 NY2d 442, 445 (1975); see also People v. Decker, 13 NY3d 12, 15 (2009) (finding 15-year pre-charge delay not excessive).11 Extent of the Delay As to the first factor, the extent or duration of the delay, the greater the delay the more probable it is that the accused will be harmed. Taranovich, supra. As crucial as the length of the delay may be, however, the Court of Appeals has steadfastly refused to set forth a per se period beyond which a criminal prosecution may not be pursued. Taranovich, supra, citing People v. Prosser, 309 NY 353, 360 (1955). In People v. Little, the Fourth Department found good cause for a nine-year pre-indictment delay, where informants’ statements in 1988 were insufficient to present to a Grand Jury until corroborated by the defendant’s inculpatory statements in 1997. 259 AD2d 1031 (4th Dept 1999); citing Singer, supra.; see also People v. Vernace, 96 NY2d 886 (2001) (People established good cause for seventeen-year pre-indictment delay). As such, while three years is considerable, that alone does not a due process violation make. Reason for the Delay The second factor, the reason for the delay, simply put, is that the People did not possess sufficient evidence to proceed on the homicide prior to defendant’s confession in 2018. Although the police recovered surveillance video in 2015, it was not a sufficient quality for facial recognition software. Instead, they relied on wanted fliers that produced no information. The police were only able to confirm the defendant’s identity on the video when he identified himself in it after his 2018 arrest. The Police interviewed multiple people at the scene, including two witnesses, shortly after the homicide. CW2 could not identify the defendant and, although CW3 indicated that he/she could make an identification, Detective Grandstaff determined that CW3′s mental deficiencies precluded reliance on any identification he/she could make. CW4 refused to discuss the homicide with the police in 2016 and never returned to be interviewed. Although, the defendant argues that he was identified in a photo array in May of 2015, and therefore the police should have arrested him then, the reality is that that witness, CW1, was not an eyewitness to the homicide but, only to events that occurred 15 to 20 minutes prior to the homicide.12 And, notably, CW1 refused to cooperate with law enforcement, including a refusal to sign the photo array. As such, the police did not have sufficient evidence in 2015 to arrest and charge the defendant with the McCoy homicide. They did, however, continue their investigation, and on August 20, 2015, as stated above, issued a “suspect” I-Card for the defendant that specifically indicated “no probable cause.” So, too, the People were unable to move forward on the I-Card in 2016, when the defendant was arrested for the second unrelated weapons and drug matter, as he requested a lawyer. To be sure, the ultimate decision to indict the defendant in 2018 for the McCoy homicide was predicated on the defendant’s confession to its commission — before the confession, probable cause did not exist. “It requires no extended argument to establish that prosecutors do not deviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed, it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt…. [R]equiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried…. [N]o one’s interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.” Wiggins, supra at 14-15 quoting Lovasco, supra at 790-792; see also People v. Thigpen, 2022 NY Slip Op. 00358 (1st Dept, January 20, 2022) (three-year delay in commencement of prosecution, based in part on the People’s discretionary determination to wait until they were able to secure the victim’s involvement and cooperation established that delay was made in good faith and not to gain a tactical advantage, and therefore, did not violate defendant’s due process right to prompt prosecution). The People’s three-year pre-indictment delay in arresting the defendant based upon their good faith belief that they did not have sufficient evidence to establish probable cause, let alone prove the defendant’s guilt beyond a reasonable doubt, was not unreasonable under these facts. Nature of the Underlying Charge The third factor to consider when determining a constitutional due process motion is the nature of the offense. Here, the defendant is charged with Murder in the Second Degree (P.L. §125.25[1]), among the most serious charges under law and, therefore, “a prosecutor may be expected to proceed with far more caution and deliberation in the prosecution of a Class A Felony than he [sic] would expend on a relatively minor offense.” Taranovich, supra at 446. Period of Pretrial Incarceration The fourth factor, pre-trial incarceration, is not applicable to the defendant’s pre-indictment due process argument as the defendant was not in custody for the 2015 homicide prior to his April 29, 2018 arrest on the unrelated weapons and drug charges. Defense Impaired by Reason of the Delay The fifth factor, whether the defense has been impaired by reason of the delay, has not been established in this case. The defense argues that the defendant’s memory has been obscured by the passage of time, including his ability to recall and contact anyone who may have been with him at the time of the crime — his memory, he argues too, was not as clear in 2018 as it would have been had he been charged in 2015 or 2016. But, again, the pre-eminent reason for the defendant’s arrest in 2018 for the homicide, was the defendant’s confession in 2018. In arguing that the defendant’s memory was impaired in 2018 the defense entirely disregards the fact that it was the defendant’s confession to the homicide, the same events he claims not to recall, and his identification of himself in the surveillance footage, that ultimately provided the police with the probable cause that resulted in his arrest and indictment. Clearly then, his memory cannot be said to have been obscured by the passage of time. The Court of Appeals has held that “a determination made in good faith to defer commencement of the prosecution for further investigation [as was the case here] or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense” (Singer at 254, citing Lovasco,, supra at 790). These factors, taken together make plain that the pre-indictment delay has not deprived the defendant of his due process rights to a prompt prosecution. To be sure, the People acted with good faith in delaying the defendant’s prosecution for the homicide until after his confession provided them sufficient evidence to prove the defendant’s guilt. See, Wiggins, supra at 14. See People v. Almonte, 90 AD3d 579 (1st Dept 2011); lv denied 19 NY3d 956 (2012) (10-year investigative delay was significant, but it was justified where the People reasonably concluded that, regardless of whether they could obtain an indictment against the defendant, they did not have sufficient evidence to obtain a conviction until witness came forward). As restated in Wiggins, “the People necessarily have wider discretion to delay commencement of prosecution for good faith, legitimate reasons than they do to delay a defendant’s trial after charges have been filed, even for legitimate reasons and without acting with bad faith.” Wiggins, supra at 13, quoting Romeo, supra at 56. It is clear from the testimony that the People’s determination to delay the prosecution in this case while the police continued their investigation was made in good faith. See, People v. Thigpen, supra, citing Vernace, supra at 888. Constitutional Speedy Trial: Post-Indictment Delay The defendant further asserts that: 1) there has been three years of post-indictment delay; applicable to both the homicide and the weapons and drug charges; 2) the Governor was without authority to suspend federal constitutional rights or order a halt to criminal proceedings; and, 3) he has not been responsible for any of the delay.13 Under the particular facts and circumstances of this case, this Court further finds that the defendant’s post-indictment constitutional speedy trial rights have not been violated. Mere delays in bringing a case to trial are insufficient to support a motion to dismiss based on constitutional speedy trial grounds. See People v. Marrero, 259 AD2d 836 (3d Dept. 1999). The five Taranovich factors previously discussed are equally applicable to the post-indictment delay. Extent of the Delay Again, the defendant was arrested on April 29, 2018 and subsequently indicted on May 8, 2018. Thus, the post-indictment delay at the time of defendant’s motion was approximately three years and one month. While the delay in this case is considerable, it is also not dispositive without a careful review of the remaining factors. Reason for the Delay In the instant matter, the reason for the post-indictment delay is based upon myriad factors, not the least of which was the unprecedented, relentless, and continuing COVID-19 global pandemic, which, after a brief respite, returned with a vengeance due to a number of new variants and only recently began abating. The unexpected and unprecedented global COVID-19 pandemic proved to be extraordinarily serious and deadly. In response, New York and many other state and local governments entered declarations curtailing the operations of both businesses and governmental entities that interact with the public, including the suspension of grand juries and petit jury trials. New York, pursuant to then Governor Cuomo’s Disaster Emergency Declaration and Executive Orders beginning March 20, 2020 shifted criminal cases to virtual appearances in order to protect the health and safety of all participants within the criminal justice system and stop the spread of the virus. So, too, the Federal Government curtailed in person operations, and the federal court system moved to virtual appearances and suspended federal jury trials with the passage of the Coronavirus Aid, Relief and Economic Recovery Security Act (CARES) beginning March 23, 2020. See, United States v. Wahhaj, 2022 US Dist LEXIS 25233 [DNM Feb. 11, 2022, No. 18-CR-02945-WJ]) (starting with the CARES Act and continuing with numerous administrative orders ever since, trials in nearly all federal district courts throughout the United States have been suspended time and time again over the past two years due to the public health threats posed by COVID-19)(emphasis added); United States v. Olsen, 995 F.3d 683, 693 (9th Cir. 2021) (holding that “a global pandemic that has claimed more than half a million lives in this country…falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health), amended and superseded on denial of reh’g en banc, 21 F.4th 1036 (2022); United States v. Smith, 460 F. Supp. 3d 981, 984 (E.D. Cal. 2020) (“[a]lmost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time [from speedy-trial considerations] has arrived at the same answer: yes.”); People v. Bey, 44 AD3d 1065 (2nd Dept 2007) (properly excluding speedy trial time during state of emergency, pursuant to the executive orders issued by Governor Pataki, due to the exceptional circumstances of the terrorist attack on the World Trade Center on September 11, 2001). It is abundantly clear that the pandemic was a justifiable period of delay in this case. So, too, the Court’s review of the file and minutes reveals that the defendant’s claim that none of the delay is attributable to him is inaccurate. To begin, the initial adjournments in the matter were for the determination of motions filed by the defendant, including defendant’s motion to renew and reargue the omnibus decision regarding suppression hearings and DNA evidence. The case was also delayed, reasonably so, for the defense to locate, evaluate and hire a DNA expert. And, specifically, on November 25, 2020 the defendant failed to enter the video booth for a virtual appearance, further slowing the process. Nature of the Underlying Charge Again, the defendant is charged with Murder in the Second Degree (P.L. §125.25[1]), among the most serious charges under law and, therefore, clearly a factor in the People’s favor as “as a prosecutor may be expected to proceed with far more caution and deliberation in the prosecution of a Class A Felony than he [sic] would expend on a relatively minor offense.” Taranovich, supra at 446. Period of Pretrial Incarceration The period of pretrial incarceration, although a factor that ordinarily weighs for the defendant, is mitigated where a significant portion of the delay is attributable to motion practice, as is the case here. And as discussed above, the once in a century, enduring, and deadly COVID-19 pandemic, over which neither the People nor the Court had any control, delayed not only court proceedings, but everything around the globe for more than two years. Defense Impaired by Reason of the Delay Finally, in assessing the fifth factor, defendant has not demonstrated any specific impairment to his defense as a result of the post-indictment delay. Although the United States Supreme Court and the Court of Appeals have recognized that “a demonstration of specific prejudice is not necessarily required in order to find a violation of a defendant’s constitutional speedy trial rights,” certainly, demonstrating such impairment would weigh in defendant’s favor. Wiggins, supra at 17-19; see Moore v. Arizona, 414 U.S. 25, 26, [1973], Barker v. Mingo, 407 U.S. 514, 532-533 [1972]; Taranovich, supra at 446-447. The defendant’s only claim of prejudice, that “at the time of his arrest three years had passed and his recollection of his whereabouts at the time of the homicide had faded and his ability to contact anyone that might have been with him at or around the time of the crime was severely impaired” (emphasis added) is unpersuasive. First, as the defendant offered a detailed confession to the 2015 homicide in 2018 it cannot be said that his memory has faded. So, too, as the defendant identified himself in photos from the surveillance video, the entirety of which he now possesses, he is in a position to refresh his recollection as to any companions from the night of the homicide. Notably, the defendant stands in the same, or better, position now as he did at the time of his arrest as the delay has potentially mitigated in the defendant’s favor to the extent that the People have disclosed that the murder weapon was subsequently recovered from an unrelated individual and one of the People’s witnesses is alleged to have recanted. The defendant has failed to demonstrate that his defense has been impaired by the post-indictment delay in this case. See People v. Johnson, 234 AD2d 390 (2d Dept. 1996). Under the specific circumstances of this case and balancing all the aforementioned factors pertaining to the post-indictment delay, the delay here cannot be said to be unreasonable, and, accordingly, the defendant has not been deprived of his constitutional right to a speedy trial. Conclusion The defendant’s motion to dismiss the indictment based on a constitutional due process pre-indictment delay, and a post-indictment speedy trial delay is denied. This constitutes the Decision and Order of the Court. Dated: September 28, 2022
