People v. Gardner
| Decision Date | 27 April 2022 |
| Docket Number | 2019–03012,Ind. No. 5377/04 |
| Citation | 204 A.D.3d 1039,167 N.Y.S.3d 159 |
| Parties | The PEOPLE, etc., respondent, v. Franklin GARDNER, appellant. |
| Court | New York Supreme Court — Appellate Division |
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, and Ann Bordley of counsel), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew A. Sciarrino, Jr., J.), rendered July 6, 2018, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
On August 28, 1994, a 15–year–old girl was forced onto a Brooklyn rooftop and raped at gunpoint. A semen sample was collected following the assault, but no suspect was identified at the time. In 2002, as part of a backlog project, the semen sample was tested, and a male DNA profile was developed and uploaded into law enforcement DNA databases. Although no match was found, on August 25, 2004, an indictment was issued based upon the developed DNA profile, charging John Doe with, among other crimes, rape in the first degree.
Sometime in 2013, in relation to the defendant's incarceration in New Jersey, a sample of his DNA was taken and the profile developed therefrom was uploaded into the law enforcement DNA databases. In December 2013, the New York City Police Department (hereinafter NYPD) received a "hit" on the DNA profile generated from the semen sample in this case and the DNA profile generated from the sample taken from the defendant in New Jersey. An NYPD detective was assigned to locate the victim, but was unsuccessful in her efforts. On October 29, 2015, while the defendant was on parole in New York, a sample of his DNA was taken by the New York State Department of Corrections and Community Supervision, a profile was developed, and that profile was found to match the DNA profile of the John Doe indicted in this case. The following day, the investigation was reassigned to a detective in the recently created DNA cold case unit in the special victims division of the NYPD. Utilizing information that had been unavailable two years prior, the detective was able to identify errors in the information given to the prior detective concerning the victim and, eventually, in December 2015, was able to locate the victim, who no longer resided in New York City. After the detective interviewed the victim, she arrested the defendant on December 15, 2015.
The defendant moved pursuant to CPL 30.30 to dismiss the indictment on statutory speedy trial grounds. Following a hearing, the Supreme Court denied the motion. The defendant then moved, inter alia, to dismiss the indictment on the ground that his right to due process of law was violated by the delay in prosecution, and the court denied that branch of the motion. The defendant subsequently moved to dismiss the indictment on the ground that his constitutional rights to a speedy trial were violated by the delay between the December 2013 DNA match and his arrest two years later, and the court denied that motion. Following the denial of the motions, the defendant pleaded guilty to rape in the first degree in satisfaction of the indictment and was sentenced in accordance with the plea agreement.
When the defendant entered a plea of guilty, he forfeited his right to claim that he was deprived of his statutory right to a speedy trial under CPL 30.30 (see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 ; People v. Suarez, 55 N.Y.2d 940, 942, 449 N.Y.S.2d 176, 434 N.E.2d 245 ). Contrary to the defendant's contention, the recent amendment to CPL 30.30 does not affect the defendant's forfeiture of his statutory speedy trial claim, as the amendment is not retroactive and did not go into effect until after the defendant's judgment of conviction was entered (see L 2019, ch 59, part KKK, §§ 1, 2; People v. George, 199 A.D.3d 831, 832, 154 N.Y.S.3d 269 ).
Although the defendant's plea of guilty did not forfeit his right to raise his constitutional claims on appeal (see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 ; People v. Love, 236 A.D.2d 488, 489, 654 N.Y.S.2d 149 ), they are, nonetheless, without merit. An unjustified delay in prosecution deprives a defendant of the state constitutional right to due process (see N.Y. Const, art I, § 6 ; People v. Decker, 13 N.Y.3d 12, 14, 884 N.Y.S.2d 662, 912 N.E.2d 1041 ; People v. Staley, 41 N.Y.2d 789, 791, 396 N.Y.S.2d 339, 364 N.E.2d 1111 ). Once accused, a defendant has a federal constitutional right to a speedy trial (see U.S. Const 6th, 14th Amends; United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 ; People v. Taranovich, 37 N.Y.2d 442, 444, 373 N.Y.S.2d 79, 335 N.E.2d 303 ). In determining whether there has been a violation of the defendant's constitutional right to a speedy trial or to prompt prosecution, the Court of Appeals has identified several factors to be considered in both inquiries: "(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 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; see People v. Decker, 13 N.Y.3d at 14–15, 884 N.Y.S.2d 662, 912 N.E.2d 1041 ). "[N]o one factor or combination of the factors ... is necessarily decisive or determinative ..., but rather the particular case must be considered in light of all the factors as they apply to it" ( People v. Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; see People v. Wiggins, 31 N.Y.3d 1, 10, 72 N.Y.S.3d 1, 95 N.E.3d 303 ).
Here, the defendant contends that the 21–year delay between the crime and his arrest violated his due process right to a prompt prosecution. While the delay of approximately 21 years was substantial (see People v. Decker, 13 N.Y.3d at 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041 ; People v. Romeo, 47 A.D.3d 954, 957, 849 N.Y.S.2d 666, affd 12 N.Y.3d 51, 876 N.Y.S.2d 666, 904 N.E.2d 802 ), the People met their burden of demonstrating good cause for the delay (see People v. Decker, 13 N.Y.3d at 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041 ; People v. Innab, 182 A.D.3d 142, 145, 119 N.Y.S.3d 174 ; People v. Mattison, 162 A.D.3d 905, 906, 79 N.Y.S.3d 274 ). Nineteen years of the subject delay was due to the lack of connection between the semen sample collected at the time of the rape in 1994 and the defendant's DNA profile, which was not developed and uploaded to the law enforcement databases until 2013. Once the police were able to identify a viable suspect, they had...
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