People v. Nnamdi Clarke
AD2 order dated November 12, 2014, reversing judgment of conviction and dismissing indictment. Decision below: 122 AD3d 765, 995 NYS2d 727. Lippman, Ch. J., granted leave to People March 25, 2015.
ISSUE PRESENTED: CPL §30.30. Whether the People’s lack of due diligence in seeking testing of DNA evidence rebutted their claim that the delay was due to “exceptional circumstances” (CPL §30.30  [g]). (Assigned counsel for Respondent: Bill Kastin & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)
Issues before the Court: CPL 30.30 - (1) When are the People charged with delay for DNA testing, in that they failed to exercise due diligence?
Held: The delay in DNA testing was not justified by due diligence.
CAL Observes: These due diligence showings are fact-specific. However, in Clarke the DA’s approach to getting DNA results was lackadaisical, both in terms of getting a sample from the defendant and in getting OCME, the testing agency, to cough up the results--as they should have done. The People cannot just get away with saying they are not responsible for what the OCME does. Anytime there is any significant delay by the People in either asking for a sample from the defendant or getting back the testing results, counsel should argue lack of due diligence.