People v. Steven Henderson
AD2 order dated September 10, 2014, affirming judgment of conviction. Decision below: 120 AD3d 1258, 992 NYS2d 140. Lippman, Ch. J., granted leave March 25, 2015.
ISSUES PRESENTED: (1) CPL 30.30: Whether the People’s delay in seeking DNA testing is an exceptional circumstance and thus excludable time. (2) Whether defendant failed to preserve this issue by not doing a reply affirmation. (Assigned counsel: Leila Hull & Lynn W.L. Fahey, Appellate Advocates,111 John St., 9th Floor, NYC 10038.)
Issues before the Court: CPL 30.30 - Was counsel ineffective for failing to include, in his 30.30 motion, an argument that the delay in DNA testing showed lack of due diligence?
Held: Since a single faux pas rarely proves ineffectiveness, and the appellate defense lawyer’s claims about DNA testing protocols were outside the record, no ineffectiveness was demonstrated on appeal, and a 440 would be necessary to show it.
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.