People v Gardner

[*1] People v Gardner 2017 NY Slip Op 51110(U) Decided on September 7, 2017 Supreme Court, Kings County Qui¤ones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 7, 2017
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Franklin Gardner, Defendant.



5377-2004



Appearances of Counsel:

Mitchell Salaway, Esq., for the Defendant

Deborah Cohen, Esq., for the People
Joanne D. Qui±ones, J.

By pro se motion adopted by defense counsel, Defendant moves to dismiss the indictment pursuant to Criminal Procedure Law (CPL) section 30.10 [FN1] on the ground that the People are barred by the statute of limitations. The People oppose this motion.

Defendant is charged with one count each of Rape in the First Degree, in violation of Penal Law (PL) section 130.35(1), a Class B violent felony; Sexual Abuse in the First Degree, in violation of PL section 130.65(1), a Class D violent felony; Sexual Misconduct, in violation of PL section 130.20(1), a Class A misdemeanor; and Endangering the Welfare of a Child, in violation of PL section 260.10(1), a Class A misdemeanor, for acts alleged to have been committed on August 28, 1994.

It is alleged that on or about August 28, 1994, Defendant followed the then 15-year-old complainant into her building, displayed a gun, forced her to the rooftop, and engaged in forcible sexual intercourse. The complainant reported the incident immediately and was taken to the hospital where a sexual assault evidence collection kit was performed. She provided a description of her attacker and a canvass was conducted with negative results. She pointed out 5702 Farragut Road as the building she observed the perpetrator enter before the incident, but a review of the tenants in the building failed to yield a suspect [*2]matching the description provided by the complainant. The complainant also viewed numerous photographs but was unable to identify her attacker. Additionally, the scene of the alleged crime was processed for fingerprints with negative results.

On December 31, 1994, Defendant was arrested in New Jersey for charges unrelated to the instant case. He was subsequently convicted and remained incarcerated in New Jersey from December 31, 1994 until March 10, 2014.

In 2002, after the creation of a project to test sexual assault evidence collection kits taken prior to the development of DNA databanks, semen from the swabs taken in connection with the complainant's 1994 kit was recovered and tested. As a result of this testing, a male DNA profile was developed and uploaded to a combined DNA index system (CODIS) databank. At that time the DNA profile did not match anyone in the databank. As of August 2004, there was still no match between the male DNA profile generated in this case and any of the profiles in the databank.

On August 25, 2004, the People filed an X-Indictment under indictment number 5377/04 charging "John Doe" under the specific DNA profile generated from the complainant's sexual assault evidence kit with the August 28, 1994 offenses. The indictment was filed together with a statement of readiness.

On December 13, 2013, the NYPD received a "hit" that Defendant's DNA from New Jersey matched the DNA profile indicted as "John Doe" under indictment number 5377/04. The complainant could not be located at that time.

After Defendant's release from New Jersey on March 10, 2014, he remained on parole in New York because of a prior New York conviction. Parole took a DNA sample from Defendant which, on or about October 29, 2015, was matched to the DNA profile indicted as "John Doe" herein.[FN2] On December 14, 2015, the complainant was located and Defendant was arrested. The very next day, December 15, 2015, Defendant was arraigned on the instant indictment.

In 2016, Defendant moved for dismissal of the indictment on speedy trial grounds pursuant to CPL section 30.30. By Decision and Order dated March 23, 2017, Defendant's motion was denied, after a hearing, by another Justice of this court. The trial court found that any delay resulting from the People's purported failure to produce Defendant after they were notified of the DNA "hit" was excludable as an exceptional circumstance under CPL section 30.30(4)(g) because, despite due diligence on the part of the police, the complainant, a material and necessary witness, could not be located.

Defendant now moves for dismissal, pursuant to CPL sections 30.10(2)(b), (2)(c) and (4)(a), on the ground that the statutes of limitation for the instant offenses have expired. He submits that the statute of limitations for the felony counts is 5 years and thus expired in 1999 and that the statute of limitations for the misdemeanors is 2 years and [*3]thus expired in 1996. He further asserts that the tolling provision set forth in CPL section 30.10(4)(a)[FN3] does not apply because the People failed to exercise due diligence in locating him. Specifically, he submits the police failed to investigate the leads given by the complainant, namely the description of the perpetrator, that the perpetrator was D.G. or a relative of his, and that the perpetrator was seen entering 5702 Farragut Road. He further submits that had the People exercised reasonable diligence to ascertain his whereabouts they would have found him given that i) he provided a DNA sample while incarcerated in New Jersey; ii) he contacted Albany, New York on 3 separate occasions regarding his New York parole violation; iii) during his incarceration in New Jersey, the State of New York had lodged a parole warrant against him; iv) upon his release from New Jersey, he reported to parole in New York for 19 months; and v) while on parole, he registered for welfare.

The People assert that the tolling provision set forth in CPL section 30.10(4)(a) is applicable because despite the exercise of reasonable diligence in trying to locate the perpetrator, his whereabouts were continuously unknown and continuously unascertainable. Here, the complainant reported the incident immediately and provided the police with a description and other information about the perpetrator. The People submit that despite these leads, the police were unable to identify a suspect. The investigation continued with the detectives reviewing local arrest activity in the area until May 18, 1995. The case was then closed until further leads developed (see People's Affirmation ¶13). In 2002, after the complainant's sexual assault evidence kit was examined, a DNA profile from the semen contained therein was generated, but no match was found for the DNA profile of the perpetrator until 2013. The People argue that they exercised due diligence in trying to locate the perpetrator and maintain that the prosecution herein, which was commenced with the filing of the indictment on August 25, 2004, is thus timely.

In 1994, CPL section 30.10(2)(b) provided that prosecution for a felony, other than a Class A felony, must be commenced within 5 years after the commission of said felony. CPL section 30.10(2)(c) provided that prosecution for a misdemeanor must be commenced within 2 years after the commission of said misdemeanor. Of course, there are various exceptions which, if applicable, toll the statute of limitations for the commencement of a prosecution. As relevant here, CPL section 30.10(4)(a) provides

In calculating the time limitation applicable to the commencement of a criminal action, the following periods shall not be included:(a) Any period following the commission of the offense during which (i) the defendant was continuously outside the state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence. However, in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.

"The plain language of [this] tolling statute emphasizes the difficulty of apprehending a defendant who is outside of the State or whose whereabouts are unknown, without regard [*4]to a showing of any specific intent of the defendant to thwart the prosecution by fleeing or hiding" (see People v Seda, 93 NY2d 307, 312 [1999]). It is undisputed that approximately 4 months after the incident, Defendant was arrested in New Jersey and remained incarcerated out of state for 20 years. Defendant's identity and whereabouts remained unknown to the People until there was a DNA hit in 2013. Where, as here, a defendant's whereabouts are continuously unknown and continuously unascertainable by the exercise of due diligence until there's been a DNA match, the tolling exception set forth in CPL section 30.10(4)(a) is applicable (see People v Ramos, 61 AD3d 783 [2nd Dept 2009] [although indictment filed nearly 10 years after the incident, prosecution not barred by the 5 year statute of limitations as defendant's whereabouts were continuously unknown and continuously unascertainable by the exercise of reasonable diligence until his DNA profile from a sexual assault evidence kit was matched to DNA evidence taken from him pursuant to a subsequent incarceration]; People v Brown, 50 AD3d 1154 [2nd Dept 2008] [same]). The People thus had 10 years to commence prosecution for the felonies against Defendant. Accordingly, the People's commencement of this prosecution by filing an indictment on August 25, 2004, albeit just days before the expiration of the tolling period, was timely with respect to the felony counts of Rape in the First Degree and Sexual Abuse in the First Degree.

The same can not be said, however, with respect to the misdemeanor counts on the indictment. As defendant points out, the statute of limitations for the commencement of a misdemeanor offense is two years from its commission (see CPL §30.30[2][c]). The tolling exception set forth in CPL section 30.10(4)(a) specifies that "in no event shall the period of limitation be extended by more than 5 years." Accordingly, in order to be timely, prosecution of the misdemeanor offenses with which Defendant is charged must have been commenced within 7 years of their commission (see People v Turner, 5 NY3d 476, 481 [2005] [even with maximum tolling, lesser included offense of manslaughter was time-barred as prosecution against defendant was not commenced until 16 years after crime; "the prosecution came some 6 years too late"]; see also People v Ambers, 26 NY3d 313, 319 [2015] [seeking dismissal of the misdemeanor endangering the welfare of child counts based on the expiration of the statute of limitations would have eliminated those charges as those charges were certainly time-barred]; People v Hughes, 220 AD2d 529, 531 [2nd Dept 1995] [misdemeanor counts of which defendant was convicted were barred by the statute of limitations as of the date prosecution was commenced]). Here, after considering the maximum 5-year tolling period allowed under CPL section 30.10(4)(a), the statute of limitations with respect to the misdemeanor charges expired in 2001 — three years before the accusatory instrument was filed. As such, the prosecution of the misdemeanor charges is untimely and those counts must be dismissed.

Defendant also seeks dismissal of the indictment on the grounds that the People violated his constitutional rights. First, he asserts that his 14th Amendment due process rights were violated because i) there was an unreasonable delay in prosecuting him and ii) he was not given notice of the indictment or the charges against him. With respect to the unreasonable delay in prosecution, he relies on People v Gallup, 224 AD2d 838 (3rd Dept 1996), where the court found that, notwithstanding the absence of any actual prejudice to defendant, dismissal of the indictment was warranted because the People failed to establish a good cause for the unreasonable more than four-year delay in prosecuting the defendant. There, the identity of the defendant was known to the prosecution within months of the incident and the [*5]delay in prosecution was due to a case backlog and personnel turnover. The court found the People's excuse insufficient and held that the People's unjustifiable delay denied the defendant due process. Here, the People have established good cause for the delay in Defendant's prosecution, namely that his identity was unknown until the DNA match in 2013 and that at the time of the match, the complainant could not be located. Once the complainant was located in 2015, Defendant was arrested and arraigned the next day.

As to Defendant's argument that he was not given notice of the indictment or the charges against him, Defendant's right to notice of the charges against him attached at his arraignment on the indictment in Supreme Court (CPL 210.15[1]). At his arraignment on December 15, 2015, Defendant was provided with a copy of the indictment which had been filed against him under the name "John Doe" with a particularized DNA profile. "A 'John Doe' indictment accompanied by a specific DNA profile is sufficient to give a defendant notice of the charges against him" (People v Martinez, 52 AD3d 68, 72 [1st Dept 2008]). Moreover, at Defendant's arraignment, the People's motion to amend the indictment to reflect Defendant's name was granted without objection putting him on further notice that he was the individual accused of the charges contained in the indictment (id. at 73).

Next, Defendant contends that his 5th Amendment rights were violated because he was not afforded the opportunity to be processed and heard before a grand jury in his defense. "Unless [a] person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding," a "district attorney is not obligated to inform [him] that such a grand jury proceeding against him is pending, in progress or about to occur" (CPL §190.50 [5][a]). Because Defendant here was not arraigned in a local criminal court upon a felony complaint, the prosecution had no obligation to inform him of his right to testify (see People v Munoz, 207 AD2d 418, 419 [2nd Dept 1994]).

Finally, Defendant contends that his 6th Amendment rights were violated because he was not afforded the opportunity to confront his accuser. Defendant's right to confront his accuser is a constitutional right that he will be afforded if he proceeds to trial (see US Const Amend VI ["In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial and to be confronted with the witnesses against him"]; see also Martinez, 52 AD3d at 73 [Had defendant elected to go to trial, his constitutional right of confrontation would have allowed him to examine the witness]; People v Brown, 166 Misc 2d 539, 544 [Sup Ct, Kings County 1995] ["The [6th Amendment] Confrontation Clause seeks to ensure that witnesses against an accused testify under oath at trial, where they face the defendant, are subject to cross-examination, and where a jury can evaluate their demeanor"] [emphasis added]).

For the reasons set forth herein, Defendant's motion to dismiss the indictment on the ground of untimely prosecution is granted solely with respect to the misdemeanor counts of the indictment. In all other respects, Defendant's motion is denied.

This constitutes the decision and order of the Court.

Dated: September 7, 2017

Brooklyn, New York

______________________________________

Joanne D. Qui±ones, A.J.S.C. Footnotes

Footnote 1:Defendant submits his motion on a pre-printed form for a Petition for Writ of Habeas Corpus pursuant to CPLR section 7000, however, it is clear from the substance of Defendant's motion that it is a motion to dismiss the indictment pursuant to CPL section 30.10.

Footnote 2:Defendant argues the People committed prosecutorial misconduct by failing to turn over the DNA taken from him by parole. He contends that this evidence is favorable to his defense and the failure to turn it over constitutes a Brady violation. Without more, Defendant's assertion is insufficient to establish a Brady violation. The People are, however, reminded of their continuing obligations pursuant to Brady v Maryland, 373 US 83 (1963) and People v Rosario, 9 NY2d 286 (1961).

Footnote 3:The court was unable to locate the due diligence requirement under "Chapter 26(4)" and "(1973 N.Y.S. 2d 376) 110 A.D." which Defendant referenced in his moving papers (see Legal Argument, p 3).