Opinion
Ind. No. 2516-2013
10-18-2022
The People of the State of New York v. John King, Defendant.
The People by: Assistant District Attorney George Kanellopoulos Queens County District Attorney's Office 125-01 Queens Boulevard Kew Gardens, New York 11415 The Defendant by: The Law Offices of Joel B. Rudin, P.C. Joel B. Rudin, Esq. 152 West 57th Street, 4th Floor New York, New York 10019
Unpublished Opinion
The People by: Assistant District Attorney George Kanellopoulos Queens County District Attorney's Office 125-01 Queens Boulevard Kew Gardens, New York 11415
The Defendant by: The Law Offices of Joel B. Rudin, P.C. Joel B. Rudin, Esq. 152 West 57th Street, 4th Floor New York, New York 10019
GARY F. MIRET, A.J.S.C.
In the indictment, the defendant was charged with Rape in the first degree (Penal Law § 130.35 [4], Kidnapping in the second degree (Penal Law § 135.20), Rape in the third degree (Penal Law § 130.25 [3]), and Endangering the Welfare of a Child (Penal Law § 260.10 [1]. On December 19, 2013, counts 2, 3 and 4 were dismissed as barred by the relevant statute of limitations. On June 9, 2016, following a jury trial the defendant was found guilty of Rape in the first degree (Penal Law § 135.35 [4]). On July 6, 2016, the court sentenced the defendant to 23 years' prison to be followed by five years' post release supervision. The defendant appealed his conviction to the Appellate Division, Second Department. On March 31, 2021, the Appellate Division, Second Department, reversed the conviction, finding principally that the trial court had erred in examining the complainant (hereinafter referred to as C.P.) ex parte about her mental health history and then striking testimony she had already given and remanded the case for a new trial. (see People v King, 192 A.D.3d 1140, [2nd Dept 2021].
The defendant filed a motion on November 23, 2021, to dismiss the indictment pursuant to CPL §§ 190.65, 210.20-210.40, on various claims. Broadly categorized, his claims center on the alleged knowingly false presentation to the grand jury by the prosecutor of testimony of the OCME criminalist regarding the DNA findings and the failure to present to the grand jury various inconsistent accounts and a complete recantation by C.P. of the sexual assault. The defendant also has moved to dismiss the indictment on the basis that the evidence before the grand jury was legally insufficient to establish the age of the defendant at the time of the alleged rape and on the failure of the prosecution to properly admit into evidence as business records the hospital records pertinent to C.P.'s allegation of rape. The defendant also has moved to dismiss the indictment based on unreasonable pre-arrest delay, and in the furtherance of justice. Lastly, the defendant seeks to invalidate the People's certificate of compliance dated October 22, 2021.
In response, the People filed an affirmation opposing the defendant's motion in all respects, which is dated February 2, 2022. First, the People argue the defendant's motions seeking to dismiss the indictment because the integrity of the grand jury was compromised and the evidence before the grand jury was legally insufficient is time barred. Secondly, the People argue the law of the case bars review of these claims. Specifically, the People contend that any errors made by the prosecutor or the expert witness regarding the DNA evidence did not rise to the level that it impaired the integrity of the grand jury proceedings and there was no duty on the People to present to the grand jury exculpatory evidence. In addition, the People argue the defendant is not entitled to dismissal of the indictment based on pre-arrest prosecutorial delay.
On April 20, 2022, the defendant submitted a reply to the People's opposition papers. On May 17, 2022, the People filed a supplemental certificate of compliance. And on May 25, 2022, the defendant submitted a sur reply.
This court has reviewed the filings submitted by the parties in connection to the claims raised in his motion, all the exhibits submitted therewith, including the testimony of the witnesses who testified before the grand jury, the trial minutes, and the court file.
RELEVANT FACTUAL BACKGROUND
At the grand jury C.P. testified that on June 7, 2004, then 12 years old, she was walking home from school when the defendant stopped and spoke to her from his car. During that interaction the defendant gave C.P. his phone number and told her his name was John King. The next day she called the defendant and they chatted awhile. On the evening of June 9, 2004, C.P. was at home when she was asked to pick up Chinese food from a nearby restaurant. She went and, while waiting for the food, called the defendant from a payphone. The defendant was in the area and offered to give her a ride home. When the defendant arrived, he told C.P. to get in the backseat. After driving awhile, the defendant parked in an alley in the area of 116th Avenue and 224th Street. He climbed over the seat and got into the back seat with C.P. and tried to kiss her. C.P. told him she wanted to leave but he got on top of her and pulled down her pants. C.P. told him to stop but he continued to force himself on her and inserted his penis into her vagina. Following the sexual assault during the early morning hours of June 10th, C.P. was dropped off by the defendant near Roseann Wilson's house. C.P. explained Ms. Wilson was a family friend with whom she had a close relationship with as a child. C.P. told Ms. Wilson she had been raped. Ms. Wilson then called 911. C.P. was then taken by ambulance to Jamaica Hospital. C.P. was examined and treated by a doctor who swabbed C.P. for biological fluids and collected her clothing for later DNA examination. Following C.P.'s examination, a police officer took possession and vouchered the sexual assault evidence kit that contained the swabs and clothing taken from C.P. for DNA analysis by the New York City Office of the Chief Medical Examiner (hereinafter OCME).
The narrative in this section was drawn from the grand jury transcript of C.P's testimony.
C.P.'s Accounts of the Sexual Assault and Recantation that were not presented to the Grand Jury
C.P. falsely told a police officer who responded to Ms. Wilson's house that a man came out of a car and threatened her at knifepoint. The man told her to get in the car or else they were going to kill her. The man forced her to do oral sex and vaginal sex with him.
Upon arrival at Jamaica Hospital, a physician examined C.P., found no signs of trauma or injury, collected her clothing and took samples for inclusion in a sexual assault evidence kit. (Trial tr at 624-627) C.P. told the physician she was penetrated "from behind" (Trial tr at 630). C.P. also falsely told a police officer who initially interviewed C.P. at Jamaica Hospital that she could not see the perpetrator's face, who she described as a stranger, because it was raining and drizzling. Later, when interviewed by two detectives, C.P. falsely stated the perpetrator wore a ski mask. Finally, C.P. told another detective that she "made the story up so [she]would not get in trouble" for staying out late. (Trial tr at 520). Following C.P.'s recantation, the police investigation was closed. Although C.P. knew the name and phone number of the defendant she never informed the police and medical staff. At trial, C.P. explained she purposely omitted telling anyone she knew the name and phone number of her attacker and made up the false narratives of how she was attacked to make her story more believable to her family who, she contended, believed she was always lying.
The narrative in this section was drawn from C.P.'s testimony at trial and Defendant's Notice of Motion, exhibit A, and reply affirmation of defendant's counsel, exhibit W.
OCME's 2004 DNA Analysis
Eli Shapiro, a criminalist at the Department of Forensic Biology at the OCME examined the items in the sexual assault evidence kit that had been collected from C.P. at Jamaica Hospital and issued a report under lab number FB04-0968 dated December 10, 2004. The findings of the analysis show that no evidence of male DNA was found on samples from C.P.'s vaginal and anal swabs. Although evidence of male DNA was detected on a stain on C.P.'s underwear labeled 1A1, and on a stain on C.P.'s tank top labeled 1A, there were insufficient DNA in either location to match it to anyone. A complete male DNA profile was detected on a stain on C.P.'s sweatpants labeled 3B. Finally, the report also indicated semen was found on C.P.'s vaginal and anal swabs, underwear, tank top and sweatpants based on the presence of the P30 antigen.
The 2004 OCME DNA report noted that the complete male DNA profile that was identified did not match any previous DNA cases but the DNA results would be entered in the National Combined DNA Indexing System (CODIS) for future comparison. In the meantime, the assailant remained unidentified.
Defendant's Notice of Motion, exhibit C.
Pre-Arrest Delay
In an unrelated 2009 investigation in which the police ultimately determined that the defendant had nothing to do with, the police collected a beverage bottle that the defendant left behind after being questioned and submitted it for DNA analysis. OCME processed the bottle and generated a DNA profile that matched the male DNA profile generated in 2004 from the back of C.P. sweatpants that was labeled stain 3B. OCME notified the police and the Queens District Attorney's Office of this match by email on February 2, 2009. Nevertheless, no action was taken on OCME's February 2, 2009, notification by either the police or the Queens District Attorney's Office.
The People's response papers concede the police received OCME's February 2, 2009, email notification that the defendant's DNA from 2009 matched the male DNA profile from stain 3B taken from the back of C.P.'s sweatpants in 2004 but omits any acknowledgment that the Queens District Attorney's Office had been notified. Exhibit D of the affirmation in support of the defendant's motion to dismiss shows that OCME had also notified on February 2, 2009, the Queens District Attorney's Office of the match.
In connection with a misdemeanor conviction in 2013, a DNA sample was taken from the defendant by the New York State Division of Criminal Justice Services (hereinafter DCJS). The defendant's DNA sample was later compared to and matched the male DNA profile taken from the stain on the back of C.P.'s sweatpants. It was not until the Queens District Attorney's Office received the DCJS notification that the defendant's DNA matched the male DNA profile from C.P.'s 2004 case that evidence was presented to a grand jury in October 2013.
On October 1, 2013, several days before Dr. Budimlija, a criminalist who had reviewed the DNA results from the 2004 OCME analysis, testified before the grand jury, Assistant District Attorney Eric Rosenbaum, who then was the supervisor of the DNA Unit, wrote a memorandum to his superiors. In the memorandum Assistant District Attorney Rosenbaum (hereinafter the grand jury prosecutor) previewed the forensic evidence he expected to present to the grand jury. The grand jury prosecutor wrote "A DNA profile was developed based on semen found on the complainant's sweatpants, and this profile matched John King." (Reply affirmation of defendant's counsel, exhibit Z)
Grand Jury Testimony of Dr. Zoran Budimlija
The narrative in this section was drawn from Defendant's Notice of Motion, exhibit E.
Dr. Budimlija testified about the 2004 DNA testing that had been performed on the clothing and biological swabs taken from C.P. He had been assigned to the Department of Forensic Biology with OCME since 2001 with a title of City Research Science level 4a which he described as the "highest managerial position at the Department of Forensic Biology." (GJ tr at 12) Dr. Budimlija testified that he had performed, supervised or reviewed" tens, if not hundred of thousands" of DNA analysis. (GJ tr at 16) Dr. Budimlija said he examined the results of tests performed on the contents of a rape kit that had been collected from C.P. that was assigned OCME file FB 04-0968. That file was received in evidence as grand jury exhibit 1. (GJ tr at 22) Dr. Budimlija said C.P.'s vaginal swab, anal swab, underwear, tank top and sweatpants tested positive for semen. The following exchange then occurred between the grand jury prosecutor and Dr. Budimlija:
Q. And on what items in the [sexual assault] kit was semen found?
A. Reading from the laboratory report dated on December 10, 2004, laboratory number
Q. Well doctor, let me back up. I don't want you to read from the item in evidence. Having reviewed the document yourself and looking at the data in the document, can you tell us what items, based on your own review[al] of the evidence in that file, tested positive for semen?
A. These were a vaginal swab, an anal swab, underwear, tank top and sweatpants from the victim.
Q. And were those items with the semen on them then tested for the presence or subjected to DNA analysis?
A. Yes.
Q. And were any male profiles found?
A. Yes.
Q. How many?
A. One.
Q. Did each of the semen samples yield a DNA profile of a male?
A. Yes, those that I just listed, yes.
Q. And how did those profiles compare to one another?
A. They were the same.
Q. Therefore what could you tell us about the various semen samples in the sexual evidence kit from the vaginal swab, anal swab, etc.?
A. They were belonging to the same male person.
Dr. Budimlija was then presented with grand jury exhibits 2 and 3, the DCJS DNA specimen form that contained the defendant's DNA that was taken as a result of an unrelated conviction and grand jury exhibit 3, the New York State Forensic DNA Report that compared the defendant's DNA from grand jury exhibit 2 against the DNA profile taken from C.P.'s rape kit. The following exchange then occurred between the grand jury prosecutor and Dr. Budimlija:
Q.[]Doctor, have you had the opportunity to look at the DNA profile from the specimen of John King?
A. Yes.
Q. And that was derived by the New York State Police according to this document, correct?
A. Yes.
Q. Have you personally reviewed the data in your own file, [grand jury] exhibit 1 [in] evidence, and reached your own conclusion about the DNA profile from the semen on the various objects from the rape kit in this case?
A. Yes.
Q. And how does the profile from the state police sample of John King compare to the semen profile in the sexual assault evidence kit that you told us should be seen in no greater than one in over a trillion people?
A. These two profiles are identical.
Q. What can you conclude, to a reasonable degree of scientific certainty, from the fact that the two samples are identical, that the two profiles are identical?
A. It means the semen found on the items that I listed actually belong to Mr. John King.
The grand jury prosecutor, following the return of the indictment, on two separate occasions, claimed, first in a sworn affirmation dated October 9, 2013, submitted to the court in support of an application to obtain a DNA sample from the defendant, that "The OCME analyzed the victim's rape evidence kit and clothing and isolated a single male DNA profile from the semen on the vaginal swab, other swab, and items of clothing." On the second occasion, a bail application proceeding on October 17, 2013, the grand jury prosecutor argued to the court that "[t]his case is a DNA match to the defendant's semen on a 12 year old girl, both the vulva and anal swabs, the girl's clothing items as well. There is a single male DNA profile from semen. It is the defendant's." (Affirmation of defendant's counsel at ¶¶ 31-32)
On the eve of trial, defendant's trial counsel requested the grand jury testimony of Dr. Budimlija. Assistant District Attorney George Kanaellopoulas, (hereinafter the trial prosecutor) argued the defendant was not entitled to the testimony of Dr. Budimlija since he would not be testifying at trial. The court agreed with the prosecutor and denied the defendant's request to obtain Dr. Budimlija's grand jury testimony.
Affirmation of Defendant's counsel at 9, ¶ 35.
DECISION
Motion To Dismiss For Unreasonable Pre-Arrest Delay
The defendant has moved to dismiss the indictment, alleging the four-year and eight month period between the date when his identity was established and his arrest was unreasonable and that he has suffered prejudice as a result. The People oppose the defendant's motion.
Under certain circumstances, a pre-arrest delay in prosecution may violate a defendant's right to due process. (People v Decker, 13 N.Y.3d 12, 14 [2009].) Nevertheless, if the delay is based upon good faith and supported by "sufficient reasons," it does not deny a defendant due process, even if he has been prejudiced by the delay. (Id. [quoting People v Vernace, 96 N.Y.2d 886 [2001].) In cases where the delay in arrest is extended, the People bear the burden of demonstrating good cause. (Id.)
The Court of Appeals has set forth a number of factors for determining whether a pre-arrest delay was justified by good cause. These factors include:
(1) the length 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 incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.(Decker, 13 N.Y.3d at 15 [quoting People v Taranovich, 37 N.Y.2d 442 (1975)].) Among these factors, the Court of Appeals has noted that the length of the delay is "critical." (Id. [quoting People v Romeo, 12 N.Y.3d 51 [2009].)
After the police closed C.P.'s case in June 2004 as unfounded, the case remained dormant until February 2009. Sometime before February 2009 the defendant was interviewed by the police in an unrelated investigation. While no charges were brought against the defendant as a result of that investigation, the police acquired a DNA sample from him. That sample was submitted to OCME for comparison. On February 2, 2009, OCME notified four members of the Queens District Attorney's Office and the Police Department that the defendant's DNA matched the DNA profile obtained from the stain on the back of C.P.s sweatpants. Despite this notification that the defendant had been identified as C.P.'s assailant, no action was taken for four years and eight months. The case again remained dormant until August 16, 2013, when DCJS informed the grand jury prosecutor that the defendant's DNA, taken after his conviction in April 2013 for Endangering the Welfare of a Minor under Queens Indictment 1972/2013, matched the DNA profile taken from C.P's rape kit. On October 4, 2013, four years and eight months later, the defendant was indicted by a grand jury on the remaining count in this indictment.
Among those notified in the Queens District Attorney's Office was the grand jury prosecutor, Assistant District Attorney Eric Rosenbaum.
Affirmation of Assistant District Attorney Eric Rosenbaum in support of motion for a DNA order, ¶ 10, October 9, 2013.
The People concede there was "an approximate five year delay" (People's Affirmation at 5) Therefore, this factor favors the defendant. (People v Romeo, 12 N.Y.2d 51, 56 [2009].) In view of the prolonged delay of four years and eight months, the People have the burden of showing that it was justified. (People v Lesiuk, 81 N.Y.2d 485, 490 [1993]; People v Andine, 214 A.D.2d 373, 374-375 [2nd Dept 1995].) As indicated, if the delay in commencing the prosecution is based upon good faith and supported by sufficient reason, it will not result in a violation of a defendant's due process rights even if he has been prejudiced by the delay. (People v Vernace, 96 N.Y.2d 241, 254 [1978].) Here, the People concede the police did not reinvestigate C.P.'s case but "merely reclosed the case as unfounded." The People posit further, "The only explanation for this action would be the memorialized victim's recantation from 2004." (People's Affirmation at 5-6) But even this explanation is based on speculation. The People offer no evidence that the police even considered the DNA evidence disclosed in February 2009, that directly identified and implicated the defendant as C.P.'s attacker and then decided to "reclose" the investigation after some deliberation because of C.P.'s recantation. What is known is there is no evidence that anyone from the Queens District Attorney's Office in 2009 ever contacted any responsible police official and discussed the weight and effect of the 2009 DNA evidence. While the reasons for the police action or inaction are unexplained, that is not the case for the Queens District Attorney's Office. Although several officials from the Queens District Attorney's Office were notified of the DNA hit that linked the defendant to C.P's case, there is no evidence presented that anyone from the Queens District Attorney's Office made any inquiries to the appropriate police department officials despite the fact that the notification from OCME explicitly advised that "These are possible investigative leads which need to be investigated by your office." (Defendant's Notice of Motion, exhibit D) The People explain further: "It wasn't until the 2013 DNA match that the Queens District Attorney and NYPD conducted a proper re-investigation of the case." (People's Affirmation at 6) The People's attempt to suggest there was some reason for the lack of action by the police is speculative and it does not explain the prosecutor's lack of action. And this argument ignores the fact that the police and the prosecutor are "coordinate arms of the state in criminal law enforcement and any delay occasioned by one is chargeable to both." (People v Montague, 130 A.D.3d 1100, 1102 [3rd Dept 2015].) The argument also ignores the "primary responsibility for assuring prompt prosecution rests with the prosecutor". (People v Staley, 41 N.Y.2d 789, 793 [1977].) The People cannot evade responsibility for their indifference to the 2009 OCME notification by blaming the police for the People's own lack of diligence. The People have not given sufficient reasons for the resulting delay of four years and eight months in prosecuting the defendant. Thus, the court finds the pre arrest delay is unexplained and unjustified. (People v Montague, 130 A.D.3d, 1100, 1102 [3rd Dept 2015] [a nearly five year delay from the date of the defendant's alleged crime to the date of the indictment was unjustified, length of delay is such that dismissal is the appropriate remedy, despite the absence of any actual prejudice to the defendant]; People v Guzman, 227 A.D.2d 219 [1st Dept 1996] [four year delay not explained, where length of and lack of justification for delay are sufficient by themselves to warrant dismissal]; People v Andine, 214 A.D.2d 373, 375 [1st Dept 1995] [unreasonable pre-indictment delay of four years seven months with demonstrated lack of diligent effort to locate the defendant constituted a denial of due process]; People v Gallup, 224 A.D.2d 838 [3rd Dept 1996] [more than four year unjustifiable delay from the date of the crime to date of the indictment constituted denial of due process and dismissal of indictment despite absence of actual prejudice to the defendant].)
Although the defendant was not incarcerated during the period of delay and the charges are serious, a 'lengthy and unjustified delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown.'" (People v Clark, 180 A.D.3d 925, 926 [2nd Dept 2020] [quoting People v Wiggins, 31 N.Y.3d 1, 13 [2018] quoting People v Singer, 44 N.Y.2d 241, 253-254 [1978]). On this record, the length of delay, although not dispositive and recognizing that there is no specific time period by which a delay may be evaluated as presumptively prejudicial, becomes of critical importance, along with other Taranovich factors that may apply, in determining whether the defendant's defense was compromised and he was prejudiced. Nevertheless, under state due process principles, "length and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown" (Singer, 44 N.Y.2d at 253-254).
Here, the defendant argues that the delay "may have resulted in the unavailability of key records concerning C.P.'s mental health." (Defendant's Reply Memorandum of Law at 7) He also argues the delay impeded his ability to search for evidence supporting an alibi defense. Addressing first his claim that he has been prejudiced by the loss of C.P.'s mental health records the defendant points, in support of his claim that these records are no longer available to him, to the People's representation that some of C.P.s mental health records from Full Circle Health were destroyed in a fire on March 9, 2015. (People's Response at 7; Reply Affirmation of Defendant's counsel at ¶ 35; Defendant's Exhibit X) The subject of these records, namely C.P.'s treatment for several psychiatric conditions by Dr. Suite, a psychiatrist, was brought up by defendant's trial counsel in colloquy with the trial court. (Trial tr at 524-527) The trial court limited cross examination of C.P. regarding her past psychiatric conditions and treatment to the time of the incident and to the time of her testimony but ruled out any examination regarding her psychiatric condition and treatment for the period between the date of the incident on June 10, 2004, to the date of her testimony on May 23, 2016. (Trial tr at 527) Nevertheless, during cross examination, defendant's trial counsel elicited that C.P. was under psychiatric care for eight years, generally from when she was 16 until she aged out of foster care at 21. During that period, she was being treated by Dr. Suite for depression and a bipolar disorder. (Trial tr at 533-534) The trial court, after additional colloquy with defendant's trial counsel, conducted an in camera ex parte examination of C.P. to determine the relevance that her psychiatric condition and treatment following the incident had on her capacity to recall accurately and whether her mental health conditions affected her credibility. (Defendant's Notice of Motion, exhibit H.) Following the in camera ex parte examination of C.P. by the trial court, the court found that "there is no showing [C.P.'s] mental health is material to the jury's assessment of her credibility". (Trial tr at 553-554)
The importance of the loss of C.P.'s mental health records to the defendant to properly defend himself cannot be better understood than by reading the Appellate Division's decision (see People v King, 192 A.D.3d 1140, [2nd Dept 2021]) in reversing the defendant's conviction:
"The right of an accused to confront witnesses against him or her through cross examination is a fundamental right of constitutional dimension (see U.S. Const, 6th, 14th Amends; NY Const, art, § 6; Davis v Alaska, 415 U.S. 308, 315; Douglas v Alabama, 380 U.S. 415, 418; Pointer v Texas, 380 U.S. 400, 406-407; People v Kennedy, 177 A.D.3d 628, 631). The right of cross-examination is an essential safeguard of fact-finding accuracy and "the principal means by which the believability of a witness and the truth of his testimony are tested" (Davis v Alaska, 415 U.S. at 316).
Where a primary prosecution witness is shown to suffer from a psychiatric condition, the defense is entitled to show that the witness's capacity to perceive and recall events was impaired by that condition (see People v Rensing, 14 N.Y.2d 210; People v Baranek, 287 A.D.2d 74, 78; People v Knowell, 127 A.D.2d 794, 795; United States v Lindstrom, 698 F.2d 1154 [11th Cir]).
The effect of the loss of C.P's mental health records occasioned by the People's unexcused and unjustified pre-arrest delay is no less consequential on defendant's ability to defend himself than the trial court's improper preclusion of cross examining C.P on her mental health conditions. These records are essential to the defendant's ability to demonstrate to the jury whether C.P's. capacity to recall the events at issue accurately and truthfully was impaired by her psychiatric condition. This evidence, taken together with C.P.'s recantation, various inconsistent statements and omission to tell the police she actually knew her attacker, combined with the impeachment evidence regarding C.P's past false rape accusations, would have been critically important in testing C.P.'s credibility. The loss of these records compromises the defendant's ability to do that in immeasurable ways. Thus, the court finds the defendant has demonstrated he has suffered actual prejudice in the loss of these records because of the People's unjustified pre-indictment delay.
The defendant also contends that his ability to impeach C.P. by prior bad acts that consist of two false accusations of rape was compromised by the passage of time because Detective Echevarria, the case detective who documented two prior false rape allegations C.P. made against her father and uncle, no longer had a recollection of how he came to learn of the false rape accusations. This type of impeachment evidence may be used to impeach a witness about a past immoral, vicious or criminal act that may reflect upon their own character and show them unworthy of belief, provided there is a good faith basis. Impeachment evidence of this kind can only be elicited on cross examination. If the witness denies committing the act, the inquiry ends there. The cross examiner cannot refute the answer by calling other witnesses since the impeachment evidence is collateral to the material part of the trial evidence. (Jerome Prince, Richardson, § 6-406 et seq. [Farrell 11th ed 1995].) In this instance, a good faith basis still exists today on which to cross examine C.P. despite the fact the Detective Echevarria' lack of memory because he memorialized the false accusations on a DD5. This is so because Detective Echevarria's DD5 and his contemporaneous attribution of the source of his information and the relationship the victims of the past false rape accusations had with C.P. provides a good faith basis and adequate notice of the false accusation to C.P. in order for her to respond. Given the rules of evidence that prevent the defendant from calling a witness to refute a denial of the accusations by C.P., the defendant's claim that he has been prejudiced on this basis has not been established. In any event, defendant's trial counsel confronted C.P. with the substance of the two false rape accusations she made against her father and uncle and arguably did not deny either. (Trial tr at 490-500)
The court finds the defendant has demonstrated a prolonged pre-arrest delay that is unexplained and unjustified in this case, that he suffered actual prejudice as a result and his due process rights have been violated. Therefore, the defendant's motion to dismiss the indictment is granted.
Although the court has dismissed the indictment because of the unjustifiable delay in commencing the prosecution against the defendant, the court has decided the remaining branches of the defendant's motion to dismiss the indictment based on claims that the integrity of the proceedings before the grand jury was impaired because of the court recognizes the possibility the People may successfully appeal this portion of the court's decision.
Motion to Dismiss because the Integrity of the Grand Jury Proceedings was Impaired
Before addressing the substance of the defendant's motions to dismiss the indictment, the People contend the defendant's motions to dismiss the indictment grounded on claims that the integrity of the grand jury proceedings was impaired and claims that the evidence before the grand jury was legally insufficient to support the charge of Rape in the first degree (Penal Law § 135.35 [4]), are timed barred by CPL § 255.20 (1). Relatedly, the People also contend the court is precluded from considering the defendant's claims by the law of the case doctrine.
Specifically, the People argue that in December 2013, following written submissions by the defendant and the People, the motion court issued a written decision finding the evidence before the grand jury legally sufficient to sustain the indictment and the instructions were sufficient. (People v King, Sup Ct Queens County, December 19, 2013, Buchter, J., Indictment No. 2516-13) The People argue in this regard the defendant's motions based on claims that the integrity of the grand jury proceedings was impaired pursuant to CPL §§ 210.20 (1) (c) and 210.35 (5), and claims that the evidence before the grand jury was legally insufficient to sustain the sole count of the indictment pursuant to CPL §§ 190.65 (1) and 210.10 (1) (b) are time barred because it "was made over seven years after the defendant's arraignment, well after the 45 day limitation of" CPL § 255.20 (1). Relatedly, the People also argue the law of the case doctrine precludes this court's consideration of either of the defendant's motions.
The People's argument is based on the defendant's failure to bring a motion challenging the integrity of the grand jury proceedings and the legal sufficiency of the evidence before the first trial. The People do not argue that he failed to bring his motion to dismiss within 45 days of the Appellate Division, Second Department's March 1, 2021, order directing a new trial.
The People do not contend that the defendant's motion to dismiss in the interest of justice pursuant to CPL §§ 210.20 (i) and 210.40 (1) or his motion to dismiss based on unreasonable pre-arrest delay are time barred and the law of the case doctrine precludes this court from considering these motions. In fact, the People's response papers did not address the defendant's motion to dismiss in the interests of justice.
The People's arguments that the defendant's motion is time barred and the court is otherwise precluded from considering it based on the law of the case doctrine lack any merit and the court rejects them. CPL § 255.20 (1) provides for such motions to be made within 45 days of arraignment, with an extension available after that period for good cause. (see CPL § 255.20 [3]; People v Perry, 128 Misc.2d 430 [Sup Ct New York County 1985] [Where defendant was unaware of grounds which it might have made, consideration of motion is mandatory if due diligence has been shown]; People v Loizides, 123 Misc.2d 334 [Suffolk County Ct 1984]; People v De Ruggiero, 96 Misc.2d 458 [Westchester Sup Ct 1978] [motions to dismiss indictment not untimely based on grand jury testimony not available until produced as Rosario material].) Put plainly, the defendant was unaware of the prejudicial effect of Dr. Budimlija's testimony before the grand jury. As important, the defendant could not have raised this issue in a meaningful way to the motion court that inspected the grand jury minutes that would have focused the court's attention on the false factual DNA claims presented to the grand jury by Dr. Budimlija's testimony that went well beyond the actual DNA evidence. On January 1, 2020, Article 245 replaced Article 240 of the Criminal Procedure Law and significantly expanded discovery in criminal cases. Prior to the expansion of discovery in criminal cases, Dr. Budimlija's grand jury testimony was not available to the defendant except as Rosario material. In this case, Dr. Budimlija did not testify at any pre-trial hearings nor at the defendant's trial. Accordingly, the court finds good cause to permit defendant's motion to dismiss to be heard based on claims that the integrity of the grand jury had been impaired by Dr. Budimlija's false and misleading DNA testimony and the related claim that C.P.'s materially inconsistent statements and recantation were withheld from the grand jury.
This decision does not address and decide the defendant's claims that the indictment must be dismissed because it lack legally sufficient evidence to establish the defendant's age or whether the Jamaica Hospital records regarding the biological swabs and clothing collected from C.P. were properly admitted as business records.
The jurisprudence addressing the law of the case doctrine, a group of judicial concepts that are designed to limit re-litigation of issues (see People v Evans, 94 N.Y.2d 499), has evolved to "express[] the practice of courts generally to refuse to reopen what has been decided. (Messenger v Anderson, 225 U.S. 436, 444; Evans at 503 ["law of the case is necessarily 'amorphous' in that it 'directs a court's discretion,' but does not restrict its authority"]). The preclusion under this doctrine requires "that both parties had a 'full and fair opportunity' to litigate the initial determination" (id. 502). This is the first time that the issues raised by the defendant's motions to dismiss based on CPL §§ 210.20, 210.35 and 210.40 have been addressed in a written motion, with notice and an opportunity for response. In this case, the previous judicial determination regarding the inspection of the grand jury minutes is not binding on the issue that the integrity of the grand jury proceedings was impaired.
In general, defects in a grand jury presentation require dismissal where "the integrity of the Grand Jury proceeding is impaired and prejudice to the defendant may result.'" (People v Huston, 88 N.Y.2d 400, 402 [1996] [quoting CPL § 210.35[5]].) Here, in this case, through a series of leading questions, Dr. Budimlija testified that the vaginal swab, anal swab, underwear, tank top and sweatpants tested positive for semen. He also said that each item was subjected to a DNA analysis and that one male DNA profile was found. Dr. Budimlija then stated that each of the samples that tested positive for semen yielded a DNA profile that were the same and they all belonged to the same male person. (GJ tr at 24-25)
Based on the particular facts of this case, Dr. Budimlija's testimony was as wrong as it was consequential. Grand Jury exhibit 1, the 2004 OCME DNA analysis established that no male DNA was found on the vaginal and anal swabs. The analysis also established that while evidence of a male DNA was detected on the underwear and tank top, there was an insufficient amount of DNA to match it with anyone. Thus, the OCME 2004 analysis established that the "same" male DNA profile was not found on the sweatpants, the underwear and the tank top.
Dr. Budimlija then compared King's DNA profile taken by the New York State Police to the DNA profile derived from the semen sample in the sexual assault kit (Grand Jury exhibit 1) and found the two profiles identical. Dr. Budimlija was then asked what conclusion could be drawn, to a reasonable degree of scientific certainty, from the fact that the two samples were identical. Dr. Budimlija said "It means the semen found on the items that I listed actually belongs to Mr. John King." (GJ tr at 30)
The items referred to by Dr. Budimlija in this passage were the vaginal and anal swabs, the underwear, tank top and sweatpants. Dr. Budimlija asserted those items contained semen that belonged to the defendant. In fact, the 2004 OCME report showed there was not enough DNA in the semen in any of the swabs or clothing samples to generate a DNA profile except for the sample taken from the sweatpants. Despite the lack of any DNA evidence on the anal and vaginal swabs and the lack of a sufficient amount of DNA on the underwear and tank top to permit a comparison, Dr. Budimlija falsely asserted those items contained a DNA profile that matched the defendant's DNA profile. The grand jury, in this case, was asked to consider the charge of Rape in the first degree (Penal Law § 130.35[4] which required proof of penetration (Penal Law § 130.00[1]). Despite the lack of any male DNA on the vaginal swab, Dr. Budimlija's false testimony satisfied that element. The People simply argue in their response that Dr. Budimlija's testimony was "inartful" and only subject to cross-examination at trial as to "whether [Dr. Budimlija] was mistaken or even wrong about the fact(s) previously testified to before the grand jury." (People's response at 4) The court rejects the People's argument. The testimony of Dr. Budimlija was not reliable because it completely overstated and distorted the actual DNA evidence. An indictment resulting from a defective grand jury proceeding must be dismissed when it's "integrity is impaired and prejudice may result." CPL § 210.35(5) As the statute recognizes, the "defendant need not demonstrate actual prejudice." People v Sayavong, 83 N.Y.2d 702, 709 (1994); Huston, 88 N.Y.2d at 409. Here, the court finds, based on the particular facts of this case, the defendant has demonstrated that Dr. Budimlija's false DNA testimony impaired the integrity of the grand jury and prejudice may have resulted to him.
Of course, Dr. Budimlija never testified at the trial and his grand jury testimony, although requested by defendant's trial counsel, was withheld by the trial prosecutor who argued to the trial court that since he was not a trial witness his grand jury testimony was not subject to discovery by the defendant (Affirmation of defendant's counsel at 9, ¶ 35).
However, this discussion does not end here. What makes the impairment of the integrity of this grand jury proceeding stand out even more is that the grand jury prosecutor accurately described the limited nature of the DNA evidence as demonstrated by a memorandum he wrote on October 1, 2013, to his superiors that previewed the evidence he expected to present to the grand jury on October 3, 2013. He wrote "A DNA profile was developed based on semen found on the complainant's sweatpants, and this profile matched [the defendant]." This memorandum shows the grand jury prosecutor had seen and understood the paperwork showing the limited nature of the DNA evidence. Despite having an accurate understanding of the DNA evidence, the grand jury prosecutor failed to correct Dr. Budimlija's false testimony during the presentation to correct the record. Following the return of the indictment, the grand jury prosecutor continued to press the false DNA narrative - this time to a court. In an affirmation dated October 9, 2013, filed with the court in support of a motion to compel a buccal swab from the defendant, the grand jury prosecutor affirmed "That the OCME analyzed the rape victim's rape evidence kit and clothing and isolated a single male DNA profile from semen on the vaginal swab, other swab, and items of clothing." And on October 17, 2013, during a bail application made to the court, the grand jury prosecutor again misrepresented the DNA evidence: He stated "[t]his case is a DNA match to the defendant's semen on a 12 year old girl, both the vulva and anal swabs, the girl's clothing items as well. There is a single male DNA profile from semen. It is the defendant's." The People's affirmation in response did not offer any explanation as to why the grand jury prosecutor did not correct or disclose Dr. Budimlija's testimony; the People's response simply ignored the entire issue.
The defendant argues the grand jury prosecutor and the trial prosecutor committed misconduct because both knew that Dr. Budimlija's testimony to the grand jury was egregiously wrong but failed to correct and disclose that information to the defendant and to the court. The court agrees. Here, the DNA evidence played a central role in the People's theory of prosecution and it strains credulity well beyond reason that the grand jury prosecutor and the trial prosecutor each were not aware of Dr. Budimjila's false DNA testimony. The evidence convincingly demonstrates the grand jury prosecutor knew through his own memorandum of October 1, 2013, that the OCME 2004 DNA analysis showed only a single male DNA profile was obtained from C.P.'s sweatpants, and he knew this just a few days before Dr. Budimlija testified before the grand jury. During a discussion before the trial began, the trial prosecutor correctly stated to the trial court that the "only area that they could get a profile was from the sweatpants." (Affirmation of defendant's attorney at ¶ 23) But when defendant's trial counsel asked for Dr. Budimlija's grand jury testimony, the trial prosecutor refused on the ground that he would introduce the DNA evidence through a different OCME analyst. (Affirmation of defendant's attorney at ¶ 35)
"Prosecutors occupy a dual role as advocates and as public officers and, as such, they are charged with the duty not only to seek convictions but also to see that justice is done. In their role as public officers, they must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 N.Y.2d 1, 7 [1993]). The prosecutor's duty of fair dealing to the accused extends to pre-trial proceedings, including the presentation of evidence to the grand jury. People v Pelchat, 62 N.Y.2d 97, 105 (1984). And the duty of fair dealing extends to correcting mistakes or falsehoods by a witness whose testimony is inaccurate. People v Steadman, 82 N.Y.2d 1, 7 (1993); People v Savvides, 1 N.Y.2d 554, 556 (1956). The court finds this evidence demonstrates each prosecutor knew of the import of Dr. Budimlija's false DNA testimony, but failed in their duty of fair dealing to the accused and of candor to the motion and trial courts by failing to disclose it. Even in cases where the indictment is supported by legally sufficient evidence, the indictment must be dismissed where the egregious presentment of evidence, here Dr. Budimlija's false DNA testimony, rises to the level of impairing the integrity of the grand jury and creates the potential of prejudice to the defendant, as it did here. Huston, 88 N.Y.2d at 410.
The testimony by Dr. Budimlija, not only was it false and highly prejudicial, also deprived the grand jury from knowing that the lack of male DNA evidence on the vaginal swab tended to undercut C.P.'s testimony that the defendant had ejaculated inside of her. This evidence was particularly critical in light of C.P.'s recantation and inconsistent statements that were not presented to the grand jury.
In grand jury proceedings, prosecutors "enjoy wide discretion in presenting their case." (People v Lancaster, 69 N.Y.2d 20, 25 [1986]). Nonetheless, prosecutorial discretion is limited by a prosecutor's "duty to not only to secure indictments but to also see that justice is done". (Lancaster, at 26) Moreover, a prosecutor's responsibility to secure indictments in a manner that serves the ends of justice is also tempered by the corresponding duty to deal fairly with the accused. (Pelchat, at 105) When a prosecutor is aware at the grand jury stage that exculpatory evidence exists that would "materially influence" the grand jury investigation or possibly cause the grand jury to change its findings, the prosecutor is obligated to present that evidence to the grand jury. (see People v Golon, 174 A.D.2d 630 [2nd Dept 1991]; People v Suarez, 122 A.D.2d 861, [2nd Dept 1986].) In this court's view, evidence that C.P. denied the rape would have fully negated the charge. C.P.'s recantation is the kind that would have "wholly" exculpated the defendant (see People v Curry, 153 Misc.2d 61 [1992]), and is the kind of exculpatory evidence that the grand jury should have heard, particularly in light of the limited DNA evidence that should have been presented to the grand jury. (People v Valles, 62 N.Y.2d 36, 38 [1984]; People v Scott, 150 Misc.2d 297 [Sup Ct, Queens County 1991] [indictment dismissed because prosecutor did not present evidence of eyewitness recantation to the grand jury].) Accordingly, the court finds the failure to present the recantation evidence had a material effect on the grand jury proceedings and possibly prejudiced the defendant.
Individually and collectively, the weight and effect of Dr. Budimlija's false DNA testimony and the decision to withhold C.P.'s recantation and materially inconsistent statements from the grand jury exacerbated by the misconduct by the grand jury prosecutor impaired the integrity of the grand jury proceedings to the prejudice of the defendant. Thus, the defendant's motion, for the reasons discussed above, is granted.
Motion to Dismiss in the Furtherance of Justice
Alternatively, the defendant moves to dismiss the indictment in furtherance of justice under CPL § 210.20(1)(i) pursuant to CPL § 210.40. CPL § 210.40(1) sets forth a list of factors for a court to consider in determining a motion to dismiss in furtherance of justice. The defendant offers as a compelling factor the prosecutor's knowing presentation of the false DNA evidence to the grand jury, his failure to correct it before the grand jury and his failure to disclose it to him and the court. The defendant has not offered any other compelling reason to dismiss in furtherance of justice that has not been addressed within the considerations of CPL § 210.20(1)(c). In the court's view, none of the factors, placing aside the issue of misconduct of law enforcement which has been thoroughly discussed and weighed in its effect on the grand jury proceedings, favor the rare remedy of dismissal pursuant to CPL §210.40. It would be an inappropriate exercise of discretion, in the court's view, to dismiss the indictment in the furtherance of justice. Accordingly, the defendant's motion to dismiss the indictment pursuant to CPL § 210.40 is denied.
For all of these reasons discussed herein, the defendant's motion to dismiss the indictment on the basis that the integrity of the grand jury proceedings was impaired is granted.
In the event the People appeal and prevail before the Appellate Division on the ground that dismissal of the indictment on constitutional speedy trial grounds was improper, leave is granted for the People to re-present this case to another grand jury within 45 days of the Appellate Division's order remanding the case to the trial court. In light of the determinations set forth herein resulting in the dismissal of the indictment, the court need not address the defendant's remaining claims.
This constitutes the decision and order of the court.
The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.