The People v. Andrew J. Regan

• Court: New York Court of Appeals
• Decided: March 16, 2023
• Docket: 18
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 18 The People &c., Respondent, v. Andrew J. Regan, Appellant.

Matthew C. Hug, for appellant. Matthew L. Peabody, for respondent.

WILSON, J.:

On the morning of August 9, 2009, a woman reported to the police that she had been

raped a few hours earlier by someone she knew well, whom she identified to the police.

That same day, she submitted to a sexual assault examination that included DNA samples.

Also that day, the police questioned the named assailant—defendant herein—who denied

any sexual contact with the woman and refused to provide a DNA sample. Defendant’s

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assertion could have been (and years later was) refuted by obtaining a sample of his DNA

via a swab of his inner cheek.

Despite the above facts, the People took over four years to file an indictment.

Because of the substantial delay—as to most of which the People offer no explanation

whatsoever—the constitutional right to prompt prosecution, embodied in the due process

clause of our state constitution, was violated. We must reverse.

I.

Four friends, consisting of two couples, attended a wedding and went out socializing

together afterwards: defendant, Ms. B (defendant’s girlfriend), the complainant, and Mr. P

(the complainant’s boyfriend). They eventually arrived at the complainant’s home and

went to sleep. As the complainant told the police a few hours after the sexual assault and

testified at trial, she awoke to find defendant on top of her and he continued to rape her

after she awoke. The complainant immediately told Mr. P what had happened; he

confronted defendant and called a friend to come and remove defendant and Ms. B from

the apartment.

When interviewed by the police that same day, defendant said that he and the

complainant had not had sex at all but refused to provide the police with a DNA sample

voluntarily. The police interviewed other witnesses and administered the sexual abuse

evidence collection kit to the complainant on the day of the assault, August 9, 2009. Four

days later they collected a DNA sample from Mr. P. Five months later, the lab reported

that samples taken from the complainant’s person and underwear contained semen; three

months after that, the lab reported that male DNA from someone other than Mr. P was

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present in the samples. By April 6, 2010, the People concluded that they needed to obtain

a DNA sample from defendant—the same one the police asked him to provide when he

was first interviewed the day of the assault. The police again asked defendant to provide a

DNA sample voluntarily, but did not hear back from him and failed to follow up.

Approximately seven months later, the assigned assistant district attorney (“ADA”)

reached out to the New York Prosecutor’s Training Institute for help figuring out how to

get a warrant to collect defendant’s DNA, but did not then apply for one. No explanation

for that failure has been offered. Two months after that inquiry, the ADA met with the

investigatory team to brainstorm ways to proceed and they again noted they needed DNA

evidence to prosecute defendant. They had several more meetings about the need to get

DNA evidence and how to obtain it over the course of February. Four months later, they

checked in with the investigators and the investigators said they would get the DNA

evidence.

Thereafter, an entire year passed, for which the People offer no explanation: at no

point have the People provided any account of what happened between June 10, 2011, and

June 26, 2012. On June 26, 2012 the ADA emailed defendant’s attorney to ask if defendant

would voluntarily provide a DNA sample. At that point—nearly three years after the

sexual assault and nearly two-and-a-half years after the police knew that a man’s DNA

other than Mr. P’s was on the complainant’s underwear and person—defendant’s attorney

responded he had represented defendant on a case several years earlier, but not on any

current matter. When the ADA informed him that she was inquiring about that still-open

investigation, defendant’s attorney observed that the case was “pretty well Singer dead”—

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referring to our decision in People v Singer (44 NY2d 241 [1978]), concerning the due

process right to a prompt prosecution. Despite counsel’s admonition that the case against

defendant might be constitutionally infirm due to excessive delay, the People inexplicably

waited another five months to request a warrant. To keep the context and timeline in mind,

the People did not seek a warrant for defendant’s DNA until 38 months after the

complainant identified defendant as her assailant and defendant denied having sex with

her.

The process to obtain a warrant for a sample of defendant’s DNA proved simple,

though the People introduced unnecessary and more unexplained delay. A week after a

new investigator was assigned to the case, he approached the District Attorney, who

suggested that a warrant might be required because defendant had declined to provide DNA

voluntarily. The investigator did not rely on any prior information gleaned by the District

Attorney’s Office as to the means for obtaining a warrant. Instead, the investigator called

the New York State Police Counsel’s Office, completed the two-page search warrant

application and five-page supporting affidavit that same day and sent it to the District

Attorney’s Office for review. The application sat in the District Attorney’s Office for three

weeks, until it was eventually submitted to the court on Friday, November 9. The court

approved it that same day, and a buccal swab was collected from defendant three days later.

On February 4, 2013, the unidentified DNA from the 38-month-old sexual assault came

back consistent with defendant’s, disproving his claim that he and the complainant had not

had sex. Defendant was arrested nine days later and the People filed a criminal complaint

on February 12. The People then presented the case to the grand jury on August 15, 2013.

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On August 29, 2013—more than four years after the complainant first told the authorities

about defendant’s assault—the People finally filed the indictment against defendant. Once

the case entered the court system, it proceeded promptly.

Before trial, defendant moved to dismiss the accusatory instrument, contending that

his due process right to prompt prosecution had been violated by the excessive

preindictment delay (see generally Singer, 44 NY2d 241 [1978]; NY Const art I, § 6).

County Court denied defendant’s motion. At trial, defendant no longer claimed he did not

have sexual contact with the complainant; instead, he claimed that she had led him into her

bedroom and the two voluntarily had sex while both their partners were elsewhere in the

apartment. Defendant was convicted upon a jury verdict of rape in the first degree (Penal

Law § 130.35 [2]). The Appellate Division, as relevant here, affirmed the judgment in a

split decision (196 AD3d 735 [3d Dept 2021]).1 A dissenting Justice at the Appellate

Division granted defendant permission to appeal the Appellate Division’s order. We now

reverse the Appellate Division’s order.

II.

By statute and constitutional law, New York guarantees criminal defendants the

right to a speedy trial and prompt prosecution (see People v Staley, 41 NY2d 789, 791;

1 The Appellate Division also modified an order of County Court, entered August 14, 2018, denying defendant’s motion to vacate the judgment pursuant to CPL 440.10, by remitting for a hearing on defendant’s claims of actual innocence and ineffective assistance of counsel. Defendant does not appeal from that portion of the Appellate Division order. Furthermore, because we conclude the indictment must be dismissed on prompt prosecution grounds, we do not address the merits of any of defendant’s other arguments. -5- -6- No. 18

People v Vernace, 96 NY2d 886, 887 [2001]; NY Const Art I, § 6; CPL § 30.20). “[T]he

State due process requirement of a prompt prosecution is broader than . . . the Sixth

Amendment . . . . [and] [i]n some respects the State rule is less rigid in its application than

the right to due process recognized under the Federal Constitution” (Singer, 44 NY2d at

253). This Court has “long held that unreasonable delay in prosecuting a defendant

constitutes a denial of due process of law,” and that “[a]n untimely prosecution may be

subject to dismissal even though, in the interim, defendant was not formally accused,

restrained or incarcerated for the offense” (see Singer, 44 NY2d at 253 [internal quotation

marks omitted]). “[T]his Court has never drawn a fine distinction between due process

violations based on delay in commencing prosecution and speedy trial violations,” and “the

factors utilized to determine if a defendant’s rights have been abridged are the same

whether the right asserted is a speedy trial right or the due process right to prompt

prosecution” (People v Wiggins, 31 NY3d 1, 12 [2018] [internal quotation marks omitted]).

Those factors are:

“(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”

(Wiggins, 31 NY3d at 9-10, quoting People v Taranovich, 37 NY2d 442, 445 [1975]). “

‘[N]o one factor or combination of the factors . . . is necessarily decisive or determinative

of the [prompt prosecution] claim, but rather the particular case must be considered in light

of all the factors as they apply to it’ ” (Wiggins, 31 NY3d at 10, quoting Taranovich, 37

NY2d at 445).

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Although the Court treats alleged due process violations based on preindictment

delay and alleged speedy trial violations based on postindictment delay similarly, there are

some relevant distinctions. We have repeatedly stated, in the context of preindictment

delay, that “a determination made in good faith to defer commencement of the prosecution

for further investigation or for other sufficient reasons, will not deprive the defendant of

due process of law even though the delay may cause some prejudice to the defense”

(Singer, 44 NY2d at 254; see People v Decker, 13 NY3d 12, 14 [2009]; Vernace, 96 NY2d

at 888). “By contrast, in post-charge delay cases, the People’s good faith determination to

delay the defendant’s trial cannot continue indefinitely, even if their proffered justification

for the delay would otherwise excuse a reasonable period of delay” (Wiggins, 31 NY3d at

13). In other words, “[t]he People necessarily have wider discretion to delay

commencement of prosecution for good faith, legitimate reasons than they do to delay a

defendant’s trial after charges have been filed, even for legitimate reasons and without

acting in bad faith” (id. [emphasis omitted]).2

We therefore have excused lengthy periods of preindictment delay—far lengthier

than the period at issue in this case—where the People have established good cause for the

2 As is typical in cases of pre-indictment delay, “no accusatory instrument was filed” during the prolonged delay here (Singas, J., dissenting op at 21). However, defendant was “actually—although not formally—accused of the” rape in August of 2009 (see Singer, 44 NY2d at 252), when the police conducted what they described in their notes as a “suspect interview” with their sole suspect—defendant. The interview concluded with defendant telling the police that he “was not willing to cooperate with this investigation without conferring with an attorney,” after which he retained one and had no further direct contact with the police or prosecution until they obtained his DNA via warrant more than three years later. It is thus clear that defendant was aware he was the target of an investigation. -7- -8- No. 18

delay (see e.g. Decker, 13 NY3d at 14-15; Vernace, 96 NY2d at 887-888). Nevertheless,

the due process right to prompt prosecution is not meaningless. “[I]f commencement of

the action has been delayed for a lengthy period, without good cause, the defendant may

be entitled to a dismissal although there may be no showing of special prejudice” (Singer,

44 NY2d at 254). “The primary responsibility for assuring prompt prosecution rests with

the prosecutors” (Staley, 41 NY2d at 793). Prosecutors may not needlessly delay without

an “acceptable excuse or justification” (id.), and a sufficiently lengthy unexplained delay

may require us to dismiss the indictment altogether.

A.

Applying the Taranovich factors to this case, the delay was considerable. Although

“there is no specific length of time that automatically results in a due process violation,”

longer delays are more likely to inflict greater harms (People v Johnson, 39 NY3d 92, 97

[2022], citing Taranovich, 37 NY2d at 445-446; see also People v Cousart, 58 NY2d 62,

68 [1982] [citing Singer for the proposition that “a five-year delay prior to trial raises a

presumption of prejudice”]). In People v Staley, we held that a “wholly unexplained 31-

month delay” was an “extraordinary time-lapse” that “would, without question, be cause

for dismissal of the indictment” even without any showing of prejudice (see 41 NY2d at

790-793). Even the People concede that the delay here was “excessive.” The fact that the

Legislature removed the statute of limitations does not change our analysis (see Singas, J.,

dissenting op at 19 n 7) and if anything heightens the need for constitutional vigilance (see

Singer, 44 NY2d at 253 [“it cannot be assumed that the Statute of Limitations will

adequately protect the defendant against the potential prejudice inherent in any delay, since

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in this State there is no Statute of Limitations for (rape in the first degree)”]). Under the

most charitable interpretation of the record and our case law, the People cannot

satisfactorily account for 31 months of their four-year delay.

The People’s explanation of their conduct is, as both the People and the dissents

concede, a factor that “weighs in the defendant’s favor” (Singas, J., dissenting op at 22;

196 AD3d at 737 [“the preindictment delay of four years was lengthy and the reasons for

the delay proffered by the People certainly left something to be desired”]). “Generally

when there has been a protracted delay, certainly over a period of years, the burden is on

the prosecution to establish good cause” (Singer, 44 NY2d at 254; Decker, 13 NY3d at 14).

It has not established good faith in this case. Here, 24 months are wholly unexplained by

the record or any of the People’s papers in this matter and 7 months at a point late in the

timeline are flimsily justified as necessary to decide the case required DNA evidence and

then figure out how to get DNA evidence from defendant. The People’s own submissions

demonstrate the emptiness of the claim that the police and the People did not know how to

obtain defendant’s DNA and could not have figured it out sooner: not only did the assigned

ADA obtain guidance on the warrant process in November of 2010—two years before the

People filed their ultimately successful warrant application—but the investigator who

eventually prepared the warrant application managed to figure out the procedure in part of

a day. Indeed, our own case law dating back to at least 1982 provides the needed guidance

on how to address this routine legal matter (see Matter of Abe A., 56 NY2d 288 [1982]).

Even taking the People’s explanation for their tardiness at face value, neither

ignorance nor indolence can be asserted to vitiate the constitutional guarantee of a prompt

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prosecution. As explained, a defendant will not be deprived of due process of law if the

People make a good faith determination “to defer commencement of the prosecution for

further investigation or for other sufficient reasons” (Singer, 44 NY2d at 254 [emphasis

added]). The People may not do what they did here. Although they should have

immediately concluded, as the police did, that they would need defendant’s DNA, they

explicitly decided that they would need defendant’s DNA by April of 2010. They then

waited, for no asserted or apparent reason, to delay seeking a warrant for that DNA until

November of 2012. The People do not even argue that their delay represented a good faith,

strategic decision that was backed by sufficient reasons. Rather, they concede that the

delay was due to incompetence and demand credit for the fact that they did not intend to

sabotage defendant’s defense. The People’s negligence is not, as they argue here, a neutral

factor in evaluating a prompt prosecution claim: as the U.S. Supreme Court has noted,

“[a]lthough negligence is obviously to be weighed more lightly than a deliberate intent to

harm the accused's defense, it still falls on the wrong side of the divide” (Doggett v United

States, 505 US 647, 657 [1992]; see also Wiggins, 31 NY3d at 13 [citing this part of

Doggett approvingly in the Taranovich context]; Staley, 41 NY2d 789, 792 [“(s)heer

neglect or trifling . . . is not permissible”]).

Singer offers an instructive comparison. In Singer, we held a 42-month pre-

indictment delay to be unacceptable where the police spent roughly four months gathering

the evidence they would ultimately use at trial, but roughly two months later the People

“directed that there be further [ultimately unsuccessful] investigation” (44 NY2d at 250

[internal quotation marks omitted]). For the following roughly two-and-a-half years, a

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detective “kept a folder on [the defendant] and on occasion . . . d[id] some work on it,”

losing track of the defendant for a few months before arresting and charging him 42 months

after the crime had been committed (see id. at 248 [internal quotation marks omitted]).

Here, law enforcement gathered all the non-DNA evidence the People used at trial almost

immediately. The police immediately attempted to gather DNA from defendant but, faced

with defendant’s failure to provide a DNA sample voluntarily, the People took no

appreciable steps to obtain that evidence until a new investigator—who did not rely on any

of their previous research—did so within a few days. Unlike in Singer, the People actually

did obtain new, helpful evidence at the end of their search. Also unlike in Singer, however,

there is no indication that the People asked the police to seek new, unknown evidence that

might strengthen their case. They simply failed to employ readily available legal

procedures, ultimately filing an indictment roughly 48 months after the crime.

Judge Singas misapplies the People’s burden based on a reading of Singer that is

not grounded in the Court’s explanation of its holding. In her account, “the Court

emphasized consideration of the People’s possible bad faith in delaying prosecution”

(Singas, J., dissenting op at 24). Although the Singer court noted that the People may have

“had a legitimate reason” for the delay (namely, a strategy to question the defendant under

“more favorable conditions”), it reiterated the well-settled principle that “the burden is on

the prosecution to establish good cause,” and “if commencement of the action has been

delayed for a lengthy period, without good cause, the defendant may be entitled to a

dismissal although there may be no showing of special prejudice” (id. at 254 [emphasis

added]). Nowhere did the Singer court mention bad faith or distinguish between the

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positive presence of bad faith and the mere lack of good faith—it was only the dissent who

used the term “bad faith,” and only to comment that “there [wa]s no indication that this

decision was made in bad faith” (id. at 258 [Gabrielli, J., dissenting in part]). Although

“bad faith . . . obviously would weigh heavily in favor of dismissal of the indictment”

(People v Romeo, 12 NY3d 51, 56-57 [2009]), we have never lightened the prosecution’s

burden to explain itself merely because the record does not establish the People’s bad faith

(see Singas, J., dissenting op at 23-25). As in Singer, the record and the briefing in this

case are devoid of any explanation for the People’s delay, although here the People had

multiple opportunities to provide one.

By contrast, we are much more solicitous of the People when they offer even a

colorable explanation for their delay, for instance when the witnesses are cowed by the

defendant’s threats (see Decker, 13 NY3d at 14; Vernace, 96 NY2d at 887).3 Other

acceptable reasons for pre-indictment delay relate to the People’s “need to investigate to

discover the offender, to eliminate unfounded charges, and to gather sufficient evidence

prior to the commencement of a prosecution” (People v Lesiuk, 81 NY2d 485, 490 [1993],

3 We do not “ignore[] this line of case law” (Singas, J., dissenting op at 22). Because our “analysis must be tailored to the facts of each case,” (Johnson, 39 NY3d at 96), no one case dictates a result here. There are many salient differences between those two cases and this one, including different underlying offenses and—crucially—different explanations for the delay. Indeed, the different explanations offered in Vernace (see 96 NY2d at 887 [mob gunmen murdered two bartenders over a spilled drink in front of 25 patrons, none of whom said they saw the assailants and other witnesses either fled, hid or recanted, leading to the court’s conclusion that the People, not the defendant, had been prejudiced by the delay]) and Decker (see 13 NY3d at 14 [the crucial witnesses had been intimidated by the defendant and were addicted to drugs and unwilling to testify for many years]) help explain why this case comes out differently than those two. - 12 - - 13 - No. 18

citing Singer, 44 NY2d at 254). Judge Singas acknowledges that no such extenuating

factors are present here (see Singas, J., dissenting op at 23 [“The People lack a credible

justification for the . . . delay”]).

Indeed, Judge Singas goes so far as to propose that the delay arose from

“investigators’ disbelief of [the complainant’s] account of the incident, or their apathy

toward her trauma,” or even their “enduring cultural attitudes towards sexual violence” (id.

at 25-26), but also maintains “that law enforcement proceeded with no bad faith” (id. at

24-25). Rather, those explanations would, in her dissent’s view, “dilute[] the significance

of this factor” (id. at 25) because “[l]aw enforcement’s mistreatment of an innocent victim,

or even bad faith toward a victim” (id. at 23 n 10) is not the kind of bad faith our laws

protect against. We reject that analysis.

Turning to the remaining three Taranovich factors, they do not weigh in defendant’s

favor, but they also do not overcome the People’s sizeable, unexplained delay. As we

recently noted in People v Johnson, the third factor refers to both the seriousness and the

complexity of the crime (see 39 NY3d, at 97). Defendant was accused and ultimately

convicted of a heinous crime. However, the preparation to which the People attribute a

delay for the prosecution of this particular crime was not complex. The People had the

complainant’s sworn statement and witness interviews immediately; the only missing

evidence was the DNA evidence from defendant, which could have been obtained with

speed and ease. In saying this, we do not disregard the difficulties prosecutors may face

in “preparing a rape victim to testify,” dealing with “the intricacies of DNA evidence and

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analysis,” or “confronting deeply entrenched preconceptions of rape held by juries and

judges alike” (Singas, J., dissenting op at 19-20). If there were any evidence in the record

that any of those difficulties contributed to the delay here, the outcome of this case might

well be different. But the People have never contended, and there is no suggestion in the

record, that the complainant in this case was reluctant to testify, or that investigators had

any difficulty processing or interpreting the DNA evidence once it was finally collected.

Nor do we hold that the six months between defendant’s arrest and trial, during which the

People presumably prepared the complainant to testify, was unreasonable. Rather, the

procedure to obtain defendant’s DNA was simple, and the People have not asserted that

any delay in this case was caused by the intricacies of prosecution. The prosecution knew

full well that, in determining the truth of defendant’s assertion that he had no sexual contact

with the complainant, DNA evidence could conclusively disprove his claim. Obtaining

that proof took a day’s worth of paperwork, a few days to execute the warrant, and three

months to obtain the lab results. When a serious crime has been committed and there are

no significant obstacles to prosecution, the interests of the People, the public, the victim,

and the defendant all favor prompt prosecution.

As to the fourth factor, defendant was not incarcerated pretrial (cf. Romeo, 12 NY3d

at 58 [concluding the fourth factor was “not significant in this case” involving

postindictment delay because “(a)t no point during his prosecution on the Suffolk County

charges has he faced additional incarceration from those charges”]).

As to the fifth factor, prejudice caused by the delay, defendant did not show special

prejudice, but is not required to do so under our case law. We have repeatedly held that if

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the first two factors favor defendant, establishment of prejudice is not required to find a

due process violation (see e.g., Singer, 44 NY2d at 254 [“if commencement of the action

has been delayed for a lengthy period, without good cause, the defendant may be entitled

to dismissal although there may be no showing of special prejudice”]; Wiggins, 31 NY3d

at 13; Taranovich, 37 NY2d at 446-447 [the “traditional view in this court (is) that where

in the circumstances delay is great enough there need be neither proof nor fact of prejudice

to the defendant”]; Staley, 41 NY2d at 792 [“when the delay is long enough, the charges

must be dismissed whether or not defendant’s ability to present a defense has been shown

to be hampered”]). As we have said, the “impairment of one's defense is the most difficult

form of [prompt prosecution] prejudice to prove because time's erosion of exculpatory

evidence and testimony ‘can rarely be shown’ ” (Wiggins, 31 NY3d at 18, quoting Doggett

v U.S., 505 US 647, 655 [1992]). Therefore, we “generally have to recognize that excessive

delay presumptively compromises the reliability of a trial in ways that neither party can

prove or, for that matter, identify” (Wiggins, 31 NY3d at 18).

We recognize that “[t]he Taranovich framework is a holistic one—that is, ‘no one

factor or combination of the factors . . . is necessarily decisive or determinative of the

[prompt prosecution] claim’ ” (Johnson, 39 NY3d at 96, quoting Taranovich, 37 NY2d at

445). Although Judge Singas complains that we focus on just one Taranovich factor, the

length of the delay (Singas, J., dissenting op at 26), that statement is truer of her dissent,

which focuses on one component of the third factor: the gravity of the crime, allowing the

seriousness of the offense to swamp all other factors. She concedes the first two factors

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favor defendant. Our precedent establishes that the absence of proof of the fifth does not

overcome a lengthy unexplained delay, and the fourth factor is not implicated here. In

contrast, she devotes most of her analysis to the seriousness of the offense (see id. at 3-12,

18-20, 26-28). She dismisses the relevance of cases solely on the basis that they involved

less serious offenses (see id. at 22). Counterintuitively to her exposition of the systemic

reluctance or indifference to prosecute sexual assault, she would permit greater

unexplained prosecutorial laxity in rape cases than she would in burglary or robbery cases

(and even where the other component of the third factor, the difficulty of the particular

prosecution, cuts against the People). In this case, the balance of the factors weighs in

favor of dismissal.

B.

Although that prompt prosecution right formally belongs to defendant, it also

vindicates the interests of victims and the rest of society by ensuring prompt adjudications

and reinforcing society’s expectation that crime will be taken seriously (see Matter of

Benjamin L., 92 NY2d 660, 667 [1999]; Staley, 41 NY2d at 792). Those considerations

are particularly weighty in sexual assault cases, where, as our dissenting colleague so aptly

chronicles in parts II and III of her dissent, distrust of the criminal justice system is rife,

and regrettably, often justified.

Here, the complainant immediately reported the rape and identified defendant as her

assailant. Defendant denied having sex with her. She submitted to an invasive search, and

her boyfriend submitted to a DNA test. Thus, defendant’s story could have been promptly

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assessed by the simple measure of obtaining a warrant for his DNA. Yet the People waited

more than three years to obtain a warrant. We agree with Judge Singas’s diagnosis of the

still-pervasive problem of law enforcement’s inability to recognize the seriousness of

sexual assault: that problem manifests itself in “the premature ending of rape

investigations, closing cases as based on ‘unfounded’ allegations, and devoting less time

and resources to investigating such cases” (Singas, J., dissenting op at 26). It results in

“structural barriers that victims confront in pursuing sexual assault prosecutions” (id. at

26). Indeed, those barriers are clearly reflected here by the People’s inaction in response

to the complainant’s prompt report to the police that she had been raped by defendant. That

the People here cannot offer any explanation for 31 months of delay illustrates the reality

of Judge Singas’s spirited concern for the torpid prosecution of sexual assaults against

women.

At oral argument, the People admitted that more than two years’ of the delay was

unexplained and inexplicable. In keeping with their earlier explanation that they needed

“to conclusively include or exclude the defendant as a suspect,” the People explained the

remaining delay in part by stating that the police had to “weigh” the conflicting

testimonies—in essence, that this was a “he said, she said” case. By implication, what “she

said” did not provide the People with sufficient motivation to investigate her rape

diligently—even when what “he said” could have been quickly disproved by a simple

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investigative tool.4 An unexcused delay of over three years communicates to victims of

sexual assault that their complaints will not be taken seriously.5 Although the

constitutional guarantee of a prompt prosecution is not the sharpest instrument by which to

address the chronic lackadaisical approach to reports of sexual assaults, affirming the

prosecutorial conduct here would establish a precedent—which would apply in every

future rape and sexual assault case—that the People can delay investigation of a serious

crime for years without any explanation or excuse, with no constitutional consequence as

long as defendant is unable to demonstrate a form of prejudice that, even when it exists,

“can rarely be shown” (see Wiggins, 31 NY3d at 18). Such a precedent would not aid

defendants, future victims, or the public.

III.

Vacating any conviction on prompt prosecution grounds runs a genuine risk that a

guilty person will not be punished, or, as in this case, not finish out his full sentence.

However, vital societal interests can overcome that cost. Our jurisprudence ensures that

4 On the broader implications of this dynamic, see generally Eliza A. Lehner, Rape Process Templates: A Hidden Cause of the Underreporting of Rape, 29 Yale J L & Feminism 207, 232 (2017) (noting that “detectives shape the law of rape: by choosing which allegations to investigate, to investigate carefully, and to bring to prosecutors, they filter which rape allegations have a chance of making it to court and thus into case law … creat[ing] a cycle in which the more messy and contested cases do not advance through the criminal justice system, so prosecutors, judges and juries are not pushed to reconsider their assumptions about rape or about what a provable rape allegation is”). 5 See Lehner at 230 (explaining how the ‘he said, she said’ dynamic “reinforce[s] the behaviors in detectives that discourage victims from reporting or pursuing allegations of rape and signal disbelief to victims”). - 18 - - 19 - No. 18

trials are fair and accurate; it also spurs prosecutors to take crime seriously and give all

parties the prompt closure they need to move on with their lives. The message sent by

Judge Singas’s would-be resolution is unacceptable: that when prosecutors cannot tender

any explanation, however fanciful, for years of delay in prosecuting a rape case, that delay

does not matter.

The constitutional guarantee of a prompt prosecution places a burden on the state,

when prosecuting crimes, to do so with alacrity. Contrary to Judge Singas’s contention,

we are not “impos[ing] a de facto 31-month limitation on first-degree rape investigations”

(Singas, J., dissenting op at 26). The problem here is not simply the expanse of time

between when the crime occurred and when defendant was charged, but the complete

failure of the People to proffer any excuse which even colorably justifies that delay. Our

constitution allows for modest unexcused delays; it allows for lengthy justifiable delays.

But it does not allow for lengthy unexplained or, as here, inexplicable delays caused by

lethargy or ignorance of basic prosecutorial procedures. The constitutional prompt

prosecution guarantee benefits defendants, victims and society at large, and it is the role of

the courts to protect it (see Singer, 44 NY2d at 254; Matter of Benjamin L., 92 NY2d at

667). In this case, the police and prosecutors did not take defendant’s constitutional rights

or the complainant’s sexual assault seriously; they did not act expeditiously with regard to

either. Their delay violated defendant’s constitutional right to a prompt prosecution.

Accordingly, the order of the Appellate Division should be reversed and the

indictment dismissed.

- 19 - SINGAS, J. (dissenting):

Despite years of progress by lawmakers and courts, including this Court, to

dismantle unreasonable barriers to rape prosecutions, women who report sexual violence

continue to face an uphill battle to hold those who rape them accountable. It is a harder

fight after today. With the majority decision, the scales, once again, weigh against

women’s voices. While the majority aims to punish the People for the pre-accusatory delay

in securing DNA evidence—a delay that had no discernible impact on defendant’s ability

to defend himself—the result is a stunning nullification of a jury’s first-degree rape

conviction and the reinforcement of the bleak history of the treatment of sexual assault

victims. Because there was no due process violation, today’s decision serves only to

undermine New York’s recent gains in ensuring that sexual assault victims are treated fairly

by the criminal justice system. Accordingly, I must dissent.

Defendant, convicted of the first-degree rape of an acquaintance, argues that the pre-

indictment delay of four years violated his constitutional right to a speedy trial. The victim

here promptly reported the rape and cooperated in the investigation. A jury found

defendant guilty, and he was sentenced to twelve years’ imprisonment. The Appellate

Division, affirming the trial court’s decision on the matter, determined that “no violation

of defendant’s constitutional right to a speedy trial” occurred (196 AD3d 735, 737 [3d Dept

2021]). The majority reverses this sound decision by means of an improper application of

the well-settled balancing test determining due process violations, rationalizing the

injustice to the victim by pointing to the People’s “ignorance” and “indolence” in obtaining

the relevant evidence (majority op at 9). In doing so, the majority discounts several salient

factors, particularly the severity of the crime—first-degree rape—because “the police and

prosecutors did not take . . . the victim’s sexual assault seriously” or “act expeditiously” to

vindicate her rights (majority op at 19). Today’s holding has disturbing echoes of our

criminal justice system’s past shameful treatment of sexual assault victims and reverses

recent progress aimed at assisting victims in obtaining justice.

From its origins in common law, the crime of rape failed in purpose and effect to

prioritize the violation on the bodily autonomy of its victims, mostly women. Introduced

around the sixth century, chattel theory considered a woman first to be the property of her

father, and later, if married, the property of her husband (Cassandra M. DeLaMothe,

Liberta Revisited: A Call to Repeal the Marital Exemption for All Sex Offenses in New

York’s Penal Law, Fordham Urb LJ 857, 861 [1996]). Rape as a legal offense thus sought

“to safeguard both the value of women to men and the stability of the marriage market”

(see Alexandra Ward, What’s Rightfully Ours: Toward a Property Theory of Rape, 30

Colum JL & Soc Probs 459, 488 [1997]), and was generally thought of “as a property crime

of man against man” (Anne Dailey, To Have and to Hold: The Marital Rape Exemption,

99 Harv L Rev 1255, 1256 [1986] [internal quotation marks omitted]). Relatedly, the legal

doctrine of coverture defined a married woman’s legal existence as beginning and ending

with her husband. Through coverture, a legal fiction was created in which a married

woman’s legal identity was subsumed by her husband’s and the husband exercised

expansive authority and control over his wife (1 William Blackstone, Commentaries on the

Laws of England at 430 [John L. Wendell ed 1847]).1

1 Derived from this property-centric lens, and rationalized on a theory of implied consent, the marital rape exemption sanctioned sexual violence within marriage, such that a man did not commit rape if he was married to his victim. As 17th century English jurist Sir Matthew Hale opined, “the husband can not be guilty of a rape committed by himself upon -3- -4- No. 18

That women and their privacy were the property of men pervaded our rape laws in

other insidious ways. For example, an evidentiary common law rule allowed evidence of

a victim’s sexual history to be admitted at trial for consideration on the question of her

consent. Such evidence was probative of consent, the theory went, because women who

had previously consented to nonmarital sexual intercourse were considered to have a

“character for unchastity,” which made it more likely that the woman had consented to

sexual intercourse on the occasion at issue (Abraham P. Ordover, Admissibility of Patterns

of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell

L Rev 90, 91 [1977]). This rule encouraged juries to engage in value judgments regarding

which women were worthy of protection under the law, and exploited societal perceptions

of women who engaged in nonmarital sex as immoral. The result was a system that offered

less protection to women deemed less worthy of it (see id. at 98-99).

Stemming from these dehumanizing origins of rape in the common law, rhetoric

relating to rape prosecutions quickly honed in on unsubstantiated concerns about false rape

accusations. Hale famously wrote that “rape is an accusation easy to be made, hard to be

proved and harder to be defended by the party accused though ever so innocent,” setting

off centuries of policies and legal theories designed to shield men from accusations, and

accountability, and leave their victims without recourse (1 Matthew Hale, The History of

the Pleas of the Crown 635 [1736]).

his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind unto her husband which she can not retract” (Sandra L. Ryder and Sheryl A. Kuzmenka, Legal Rape: The Marital Rape Exemption, 24 J Marshall L Rev 393 [1991]; see People v Liberta, 64 NY2d 152, 162 [1984]). -4- -5- No. 18

Given this legacy of suspicion, it is of no surprise that rape prosecutions were

encumbered by the corroboration requirement. Prior to 1974, the Penal Law provided that

“[n]o conviction can be had for rape or defilement upon the testimony or the female defiled,

unsupported by other evidence” (former Penal Law § 130.15; People v Croes, 285 NY 279,

281 [1941]). Victim testimony alone was insufficient to sustain a conviction, and

additional evidence was required to establish both that the victim had been raped and that

the accused was responsible (People v Downs, 236 NY 306, 308 [1923]). Thus, as a matter

of statutory law, the testimony of rape victims was treated as less credible than that of

witnesses to other crimes, such as robberies or assaults.

The corroboration requirement was promulgated “to protect against the perceived

danger of false accusations” and “nurtured . . . largely in an unfair skepticism of the

testimony of the women who were the victims of these crimes” (People v Fuller, 50 NY2d

628, 635 [1980]). “The original justification for the corroboration requirement in sex

offense cases lies in the chauvinistic argument that women are prone to sexual fantasies

and given to ‘contriving false charges of sexual offenses by men’ ” (People v Grady, 98

Misc 2d 473, 475 [Albany County Ct 1979]; see e.g. People v Yannucci, 258 App Div 171,

172 [2d Dept 1939] [“(t)he law wisely recognizes that some complainants are designing or

vicious. If it were not for the rule of corroboration, a defendant would be at the mercy of

an untruthful, dishonest or vicious complainant”]). Because of the nature of the crime,

often all victims have is their word and, by statutory design, their word was not good

enough, rendering convictions elusive in all cases but those with the most overwhelming

-5- -6- No. 18

Even when corroborative evidence was available, courts frequently discounted its

value and held that such evidence did not satisfy the requirement. For example, in People

v Radunovic, this Court held that bruises on the victim’s thigh, as well as testimony from

her obstetrician that her hymen was intact prior to the alleged assault and broken after, did

not constitute sufficient corroboration (21 NY2d 186 [1967]). In another instance, a court

considered a defendant’s admission to having had sexual intercourse with the victim over

the course of two years to fall short of corroborating the allegation of statutory rape (see

People v Perez, 25 AD2d 859 [2d Dept 1966]; see also People v Downs, 236 NY 306, 311-

312 [1923] [admission by defendant that he had “fooled with” the victim did not satisfy

the corroboration requirement]). A victim’s pregnancy, claimed to be the result of the rape,

was also not sufficient to satisfy the corroboration requirement (Croes, 285 NY at 282).2

Another unduly restrictive requirement imposed upon victims, grounded in the same

skepticism as to their credibility, was the common law “hue and cry” requirement, which

demanded immediate outcry (Dawn M. DuBois, A Matter of Time: Evidence of a Victim’s

Prompt Complaint in New York, 53 Brook L Rev 1087, 1089 [1988]). Without prompt

reporting, prosecutors were precluded from even charging the crime (Michelle J. Anderson,

The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and

2 In response, prosecutors often pursued only lesser charges, such as attempted rape, even where a completed rape had occurred (see William E. Nelson, Criminality and Sexual Morality in New York, 1920-1980, 5 Yale JL & Human 265, 305-306 [1993]). Courts reacted to this tactic by extending the corroboration requirement to lesser sexual offenses so that prosecutors could not “circumvent the requirement of corroboration necessary for a conviction of . . . rape simply by charging instead [a lesser offense]” (People v Lo Verde, 7 NY2d 114, 116 [1959]; see also Radunovic, 21 NY2d at 189; People v English, 16 NY2d 719, 720 [1965]). -6- -7- No. 18

Cautionary Instructions on Campus Sexual Assault, 84 BU L Rev 945, 955 [2004]; DuBois

at 1089). Rape was again treated as a different class of offense based on a patriarchal view

of how women should behave: “[t]he rule is founded upon the laws of human nature, which

induce a female thus outraged to complain at the first opportunity. Such is the natural

impulse of an honest female” (Higgins v People, 58 NY 377, 379 [1874]). In the 1800s,

the rule was modified to allow prosecution despite the absence of immediate reporting, but

juries were entitled to make an adverse inference to the rape claim (DuBois at 1090).

Perhaps the most oppressive and dangerous requirement of all was that of “utmost

resistance,” requiring a victim to have exerted “the greatest effort of which she is capable

therein, to foil the pursuer and preserve the sanctity of her person” for such rape to qualify

as a legal offense (People v Dohring, 59 NY 374, 383 [1874]).

“Certainly, if a female, apprehending the purpose of a man to be that of having carnal knowledge of her person, and remaining conscious, does not use all her own powers of resistance and defence, and all her powers of calling others to her aid, and does yield before being overcome by greater force, or by fear, or being surrounded by hostile numbers, a jury may infer that, at some time in the course of the act, it was not against her will” (id.).

Thus, a woman who failed to resist risked an unsuccessful prosecution and one who did

resist potentially risked her life (see Letter of Assembly Sponsor in support, Bill Jacket, L

1982, ch 560 at 3-4 [in supporting legislation eliminating the proof-of-resistance

requirement, stressing that “many law enforcement officials and rape crisis services advise

women not to resist a sex attacker, as to do so is likely to place them in danger of serious

injury or death”]).

-7- -8- No. 18

“As such, rape was one of the few crimes for which the actions of the defendant

alone were insufficient to satisfy the elements of the crime . . . . Both the quantity and the

quality of [the victim’s] response were put on trial, deliberated over, and adjudicated” (I.

Bennett Capers, Real Women, Real Rape, 60 UCLA L Rev 826, 383 [2013]), resulting in

fewer convictions and traumatized victims as forsaken causalities.

Primarily since the 1970s, New York has significantly, albeit incrementally,

recognized and acted to alleviate this extensive anti-victim bias. In 1974, the legislature

repealed former Penal Law § 130.15, requiring corroboration of the victim’s account to

obtain a conviction for forcible rape.3

One year later, the legislature enacted CPL 60.42, commonly referred to as New

York’s “rape shield” statute, precluding most evidence of a complainant’s prior sexual

conduct in a prosecution for a “sex offense” (or an attempt thereof). The statute represents

the legislature’s determination that evidence of a victim’s past sex life is “seldom . . .

relevant to the issues of the victim’s consent or credibility, but serves only to harass the

alleged victim and confuse the jurors. Focusing upon the immaterial issue of a victim’s

chastity tends to demean the witness, discourages the prosecution of meritorious cases, and

leads to acquittals of guilty defendants” (Assembly Introducer’s Mem in Support, Bill

Jacket, L 1975, ch 230 at 4). Indeed, “even with the [elimination] of the corroboration rule,

3 Currently, corroboration is required only where lack of consent “results solely from incapacity to consent because of the victim’s mental defect, or mental incapacity” (Penal Law § 130.16). -8- -9- No. 18

rape victims ha[d] still been reluctant to pursue prosecution of their attackers because they

would not or could not undertake the risk of suffering the indignities attendant upon their

cross examination”; the rape shield litigation, therefore, “accomplish[ed] two desirable

objectives: It remove[d] from the trial of an alleged rapist the mini-trial of his alleged

victim; and equally if not more important, it [would] encourage rape victims to cooperate

wholeheartedly in the search for and prosecution of their attackers” (Mem of Morton H.

Grusky, NY St Div of Criminal Justice Services, Bill Jacket, L 1975, ch 230 at 14).

In the late 1970s and early 1980s, the legislature repeatedly amended the definition

of forcible compulsion contained in Penal Law § 130.00 (8), each time attempting to

eliminate the prior version’s perceived burden on the victim of a sex offense to fight off an

attacker. The 1982 amendment eliminated any requirement of victim resistance, which

“ma[d]e a long overdue public policy statement that submission to a sexual attack to

preserve one’s life or safety is not consent to a sex crime” (Legislative Mem in Support,

Bill Jacket, L 1982, ch 560 at 8). But the revised definition continued to focus on the

victim’s subjective view regarding the degree of fear necessary to overcome their

resistance to the assault, and relatedly to suggest that the offender’s use of physical force

was not alone sufficient to constitute forcible compulsion. Therefore, in 1983 the

legislature amended the definition yet again to clarify that compulsion may take the form

of physical force (Penal Law § 130.00 [8] [a]), as opposed to deadly physical force, or of

a “threat, express or implied,” which placed a person in fear “of immediate death” or of

only “physical injury to himself, herself or another person, or in fear that he, she or another

person will immediately be kidnapped” (Penal Law § 130.00 [8] [b]).

This evolving understanding of the crime of rape and its impact on victims was

further reflected in People v Taylor, where the Court held that expert testimony as to rape

trauma syndrome could be admitted to aid a jury in reaching a verdict (75 NY2d 277, 288-

289 [1990]). In so deciding, the Court effectively catalogued the long-standing

institutional and societal obstacles to rape prosecutions outlined above: “rape is a crime

that is permeated by misconceptions,” and “jurors will under certain circumstances blame

the victim for the attack,” “refuse to convict the man accused,” or “infer consent where the

victim has engaged in certain types of behavior prior to the incident” (id.).4

Most relevant here, the legislature in 2006 took the extraordinary measure of

eliminating the statute of limitations for prosecutions of rape in the first degree, criminal

sexual act in the first degree, aggravated sexual abuse in the first degree and course of

sexual conduct against a child in the first degree (see CPL 30.10 [2] [a]). The legislature

deemed sex crimes among “the most heinous and deeply disturbing in our society” and

asserted that those who commit such “violent and serious acts should not be shielded from

prosecution by the mere passage of time, especially at the expense of those whom they

have victimized, and whose physical and emotional scars will endure without limitation”

(Senate Introducer’s Mem in Support, Bill Jacket, L 2006, ch 3 at 4). Further, the

legislature recognized “that offenders who commit these felonies often cause lasting harm,

not only to victims and their families, but also to society and our system of justice,” and

4 Relatedly, the Court had finally declared the “marital exemption” unconstitutional six years before, recognizing that “there is no rational basis for distinguishing between marital rape and nonmarital rape,” and “[a] married woman has the same right to control her own body as does an unmarried woman” (Liberta, 64 NY2d at 163-164). - 10 - - 11 - No. 18

“our laws must be strengthened to provide clear recognition of . . . the compelling

importance of prosecuting serious offenders, regardless of when law enforcement is able

to proceed” (id.).5

In 2019, the legislature extended the statute of limitations for second- and third-

degree rape prosecutions to twenty and ten years, respectively (CPL 30.10 [2] [a-1], [a-2]).

The legislature asserted that, “[f]or crimes of sexual violence in particular, the [statute of

limitations] clock ticks against the trauma and culture of silence that prevents victims from

speaking out” (Senate Introducer’s Mem in Support, Bill Jacket, L 2019, ch 315 at 5).

But while some barriers have been removed, sexual assault remains prevalent. In

the United States, one in four women experience a completed or attempted rape at some

point in her life (The National Intimate Partner and Sexual Violence Survey: 2016/2017

Report on Sexual Violence, https://www.cdc.gov/violenceprevention/pdf/nisvs/

nisvsReportonSexualViolence.pdf [Centers for Disease Control and Prevention, National

Center for Injury Prevention and Control, 3, last accessed March 3, 2023]) and eight out of

5 Prior to its passage in the Senate, multiple senators rose in support of the legislation, asserting, variously, that the prior existing five-year statute of limitations for these crimes was “ridiculous, insensitive, and really obscene” (Senate Debate Minutes [6-21-06], at 5377); that “there is no justice for that woman” and the perpetrator “ha[s] gone unpunished” if the perpetrator was found after the five years had passed (id. at 5377-5378); that by assigning these crimes a five-year limitations period, “we were telling [women] that the crime of rape is not as serious as the crime of murder, the crime of kidnapping, the crime of arson and certain drug crimes” (id. at 5385-5386); that, by eliminating the statute of limitations, “[t]here is no place you can hide, there is no time frame in which you can avoid punishment” (id. at 5394); and finally and most fundamentally that “[r]ape is a woman’s greatest fear. It is the one time we are rendered completely unable to protect ourselves,” and victims should have “the opportunity to seek justice, whether it was one year, five years, 10 years, or 50 years” (id. at 5396). - 11 - - 12 - No. 18

every ten rapes are committed by someone known to the victim (Perpetrators of Sexual

Violence: Statistics, https://www.rainn.org/statistics/perpetrators-sexual-violence [Rape,

Abuse & Incest National Network, last accessed March 3, 2023]). Nor has the historically

unfair treatment of rape victims been adequately addressed, as reflected by continued

reticence to report the crime. In 2021, approximately 21 percent of rapes were reported to

police, compared to 60 percent of robberies and 46 percent of assaults (Alexandra

Thompson and Susannah N. Tapp, Criminal Victimization, 2021,

https://bjs.ojp.gov/content/pub/pdf/cv21.pdf [U.S. Dept of Justice, 5, Sept. 2022, accessed

March 3, 2023]). One figure estimates only five percent of reported rapes lead to arrest

(The Vast Majority of Perpetrators Will Not Go to Jail or Prison,

https://www.rainn.org/statistics/criminal-justice-system [Rape, Abuse & Incest National

Network, last accessed March 3, 2023]). And less than six percent of all forcible rapes

result in conviction (Kimberly A. Lonsway and Joanne Archambault, The “Justice Gap”

for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against

Women 145, 157 [2012]).

It is within this historical context that A.L. promptly reported that defendant raped

her to the police, and it is against this backdrop that the majority denies her justice here.

IV.

After attending a wedding together on August 8, 2009, A.L. and her boyfriend C.P.

spent time with A.L.’s best friend J.D. and her boyfriend, defendant. The group spent the

evening out socializing and later that night, returned to A.L.’s house. A.L. offered to let

J.D. and defendant sleep on the couch in her living room to avoid driving home. A.L. then

- 12 - - 13 - No. 18

went to her room, told C.P. she loved him, wished him a good night, and quickly fell asleep.

She woke up suddenly unable to breathe with a crushing weight bearing down on her body.

She saw defendant’s face above her own, felt his stomach touching hers, and then felt him

roll off of her body. A.L. put her hands between her legs and felt something wet, her vagina

swollen, and her underwear pushed off to the side.

Immediately, A.L. changed and found C.P., who was out on the porch making a call.

Crying, A.L. told C.P. that she thought defendant had just raped her. C.P. began crying

too and called his friend W.W., asking him to come over right away to get defendant out

of the house. W.W. called A.L.’s parents. While A.L. was waiting for her parents, J.D.

came to her and asked her what had happened. A.L. told her best friend that she thought

defendant had just raped her. J.D. started yelling at A.L. and W.W. had to remove J.D.

from the room. W.W. drove defendant and J.D. home; on the way, defendant told W.W.

that he did not have sex with A.L. Soon, A.L.’s parents arrived, called the police, and

drove A.L. and C.P. to the hospital, where a Sexual Assault Nurse Examiner (SANE)

completed a sexual assault examination and rape kit, including swabs of A.L.’s vaginal and

anal area. A.L.’s underwear was given to the SANE nurse at the hospital and police

interviewed A.L. and C.P. Having reported the rape immediately and cooperated fully with

police investigative procedures, including undergoing an invasive medical examination,

A.L. had every expectation that law enforcement would promptly commence a prosecution.

That morning, the police also interviewed defendant, who denied having sexual

intercourse with A.L., but told police that he wished he had. Four days later, police

obtained a buccal swab from the victim’s boyfriend, C.P., for comparison in subsequent

DNA testing. On January 20, 2010, an investigator received a laboratory report indicating

a positive presence for sperm on A.L.’s underwear and her vaginal and anal swabs. That

same day, at the request of the lab, police collected a buccal swab from A.L. for

comparison. On April 5, 2010, the investigator received a supplemental report reflecting

that DNA recovered from the swabs comprised a mixture which included DNA from C.P.

and DNA from an unknown male. This date begins the pre-accusatory delay at issue in

this case.6

In the ensuing 14 months, the People made nominal additional efforts to obtain

defendant’s DNA by consent and discussed the possibility of obtaining a search warrant.

On April 6, 2010, the investigator conferred with the District Attorney and reached out to

defendant’s retained counsel to request that defendant voluntarily provide a DNA sample.

There is no indication in the record whether the attorney responded to this request. During

that period, the DA’s office rejected the possibility of proceeding by felony complaint

without defendant’s DNA sample because of the “relative lack of evidence.” In November

2010, the People discussed acquiring defendant’s DNA with the New York Prosecutor’s

Training Institute. In June 2011, an assistant district attorney met with the investigator to

discuss the case. Later that month, the investigator interviewed W.W, who stated that the

night of the incident, defendant denied having sex with A.L. In June 2012, the DA’s Office

contacted defendant’s attorney regarding defendant’s DNA sample or setting up a meeting

with defendant and investigators. Defendant’s attorney responded that he needed more

6 Indeed, the DNA testing and analysis was necessarily at the center of the investigation given defendant’s initial lie that he did not have sex with A.L. - 14 - - 15 - No. 18

time to speak with defendant. On October 18, 2012, the DA and a new investigator agreed

to seek a search warrant to compel defendant to provide a DNA sample. After receiving

guidance from the New York State Police Counsel’s Office regarding search warrant

applications, on November 9, 2012, 31 months after the report indicating a mixture of

DNA, the application was submitted and signed by St. Lawrence County Court. A DNA

sample was collected from defendant and submitted to the State Police lab the same day.

This action marks the end of the relevant pre-accusatory delay.

On February 4, 2013, the investigator received another supplemental report

indicating that defendant’s DNA matched the sperm found on A.L.’s underwear and swabs.

A felony complaint was filed on February 12, 2013, commencing this criminal action.

Defendant was subsequently arrested and arraigned. Between August 8, 2009, and the

collection of defendant’s DNA, law enforcement had minimal contact with defendant or

his attorney. Prior to the filing of the accusatory instrument, there was no public accusation

against defendant; no “perp walk” was conducted, no press conferences were held, and no

media attention was sought or received.

The case was then presented to a grand jury and defendant was indicted on one count

of rape in the first degree based on the victim’s physical helplessness. Defendant moved

to dismiss the indictment on preindictment delay grounds. The court denied defendant’s

motion, finding “the seriousness of the charge and the absence of any demonstrated

prejudice to be paramount factors.” The case proceeded to trial where defendant,

confronted by the DNA evidence, admitted for the first time that he had sex with A.L. but

claimed it was consensual. The jury ultimately found defendant guilty of first-degree rape.

The Appellate Division, with two Justices dissenting, affirmed defendant’s

judgment of conviction. As relevant here, the Court upheld the denial of defendant’s

motion to dismiss, concluding that “the seriousness of the offense, the fact that defendant

was not incarcerated pretrial and the absence of any demonstrated prejudice outweighed

the four-year delay and the shortcomings in the People’s reasons therefor” (196 AD3d at

737).

V.

New York’s prompt prosecution framework has roots in Supreme Court precedent

which sought to promote the Sixth Amendment’s speedy trial “safeguard to prevent undue

and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying

public accusation and to limit the possibilities that long delay will impair the ability of an

accused to defend [themself]” (People v Ewell, 383 US 116, 120 [1966]). The New York

Constitution’s recognition that an extended delay before filing an accusatory instrument

might violate a defendant’s due process rights is an important check on the People’s ability

to unjustifiably delay a criminal prosecution to a defendant’s detriment. “[A] suspect’s

primary protection against protracted delay in being brought to bar ordinarily is the [s]tatute

of [l]imitations, but delay in arresting or lodging charges over a lesser period of time may,

in special circumstances, impair the right to a fair trial” (People v Fuller, 57 NY2d 152,

159 [1982]). When “extreme and unjustified,” and under “certain unusual circumstances,”

preindictment delay may “mandate dismissal of an indictment upon due process grounds”

(Vega v Bell, 47 NY2d 543, 550 n 1 [1979]).

“[T]here are no clear cut answers in such an inquiry, and the trial court must engage

in a sensitive weighing process of the diversified factors present in the particular case”

(People v Taranovich, 37 NY2d 442, 445 [1975]). Although several factors are of

consequence, “no one factor or combination of the factors set forth below is necessarily

decisive or determinative . . . but rather the particular case must be considered in light of

all the factors as they apply to it”: “(1) the extent of the delay; (2) the reason for the delay;

(3) the nature of the underlying charge; (4) whether . . . there has been an extended period

of pretrial incarceration; and (5) whether . . . there is any indication that the defense has

been impaired by reason of the delay” (id.; see People v Vernace, 96 NY2d 886, 887

[2001]).

The goal of every balancing process should be “[t]o accommodate the sound

administration of justice to the rights of the defendant to a fair trial” which “will necessarily

involve a delicate judgment based on the circumstances of each case” (United States v

Marion, 404 US 307, 325 [1971]). The nuanced analysis in which courts must engage is

thus not oriented toward punishing the People for failing to promptly commence a

prosecution. Nonetheless, the majority here concludes that defendant’s due process rights

were violated due to the delay in prosecution, either because law enforcement did not

believe the victim, was slow in proceeding, or was negligent in its ignorance of the

mechanisms to obtain a warrant. The majority casts aside this jury verdict without evidence

that defendant suffered actual prejudice from the delay and where the only contact

defendant had with law enforcement before his DNA was collected occurred the morning

after the crime.

A proper balancing of the relevant factors yields a different result.

Nature of the charges: There is a profound societal interest in ensuring that

prosecutions of the most serious harms go forward, as evidenced by the legislature’s

elimination of the statute of limitations on serious crimes. When a crime is more serious,

a greater delay prior to filing an accusatory instrument is tolerated. Accordingly, the more

grievous the underlying crime, the less likely that dismissal is an appropriate sanction for

an unjustifiable delay in the absence of prejudice.

When the New York Legislature repealed the five-year statute of limitations for

first-degree rape in 2006, it explained that

“offenders who commit violent and serious acts should not be shielded from prosecution by the mere passage of time, especially at the expense of those whom they have victimized, and whose physical and emotional scars will endure without limitation . . . . New York law recognize[s] that offenders who commit these felonies often cause lasting harm, not only to victims and their families, but also to society and our system of justice. [O]ur laws must be strengthened to provide clear recognition of the gravity of other violent crimes and the compelling importance of prosecuting serious offenders, regardless of when law enforcement is able to proceed” (Senate Introducer’s Mem in Support, Bill Jacket, L 2006, ch 3 at 4).

It also referred to first-degree rape and similar sex crimes as “the most heinous and

deeply disturbing in our society” (id.). In repealing the five-year statute of limitations for

- 18 - - 19 - No. 18

rape prosecutions, the legislature mandated that rape be treated as seriously as murder, a

crime likewise unencumbered.7

Indeed, murder investigations are comparable to rape investigations not only in

gravity but in the likelihood of traumatized witnesses and DNA evidence, and in particular

DNA mixtures (see e.g. People v Decker, 13 NY3d 12, 15 [2009] [noting “the witnesses’

fear of testifying against defendant” in a murder prosecution]; Vernace, 96 NY2d at 887

[observing that a previously-cooperating witness in a murder investigation recanted out of

fear of the suspects]; see also e.g. People v Wakefield, 38 NY3d 367, 371-372 [2022] [DNA

sample collected from the murder weapon was not “compared to defendant’s DNA profile

because of the complexity of the mixture”]; People v John, 27 NY3d 294, 312 [2016]

[generally noting the “more complex interpretation of DNA profiles from mixtures”]).

Because, as this Court has recognized, investigations into such serious crimes require

“more caution and deliberation” than investigations into lesser offenses (Taranovich, 37

NY2d at 446), this factor militates heavily against defendant.

The majority’s assumption that a first-degree rape case with a cooperative victim is

actually quite simple blithely ignores the devastating impact of sexual violence on a victim

(see majority op at 14). There is nothing simple about preparing a rape victim to testify, in

open court and under cross-examination, especially in cases involving physically helpless

victims who are raped by acquaintances. Suggesting otherwise contradicts our modern

7 The majority misapprehends the significance to the Taranovich analysis of the legislature eliminating the statute of limitations (majority op at 8-9). Indisputably, its elimination heightened the severity of defendant’s crime. - 19 - - 20 - No. 18

understanding of victims’ re-traumatization through participation in legal proceedings,

where “[v]ictims are often subjected to detailed and aggressive questioning about personal

and often traumatic events, and defense attorneys may try to apportion blame for the crime

or question their credibility and reliability” (Jim Parsons and Tiffany Bergin, The Impact

of Criminal Justice Involvement, 23 J. Traumatic Stress 182, 184 [2010]; see also Rachel

J. Wechsler, Victims As Instruments, 97 Wash L Rev 507, 535 [2022]). Indeed,

“[r]esearchers have found that facing the perpetrator in court” and “remembering details of

the crime . . . can all trigger secondary responses to the initial trauma”] (id.). Characterizing

this prosecution as “not complex” also disregards the intricacies of DNA evidence and

mixture analysis, as well as the difficulties in confronting deeply entrenched

preconceptions of rape held by juries and judges alike (see majority op at 13).

Pre-indictment incarceration: There was no incarceration prior to the filing of the

accusatory instrument here, which certainly militates against dismissal.

Prejudice: There has been no showing of specific prejudice. While the delay is

significant, it is not so long that substantial prejudice to defendant’s ability to defend

himself can be readily inferred (see Decker, 13 NY3d at 15-16 [in a murder case, significant

prejudice could not be inferred from 15-year delay]). In fact, the passage of time, without

more, often works as much to the People’s disadvantage as to the defendant’s (see id. at

16; Vernace, 96 NY2d at 888 [“(f)ar from giving the People an unfair tactical advantage,

the delay here has made the case against defendant more difficult to prove beyond a

- 20 - - 21 - No. 18

reasonable doubt”]).8 In addition, “[u]ntil [arrest], a citizen suffers no restraints on [their]

liberty and is not the subject of public accusation: [their] situation does not compare with

that of a defendant who has been arrested and held to answer” (Marion, 404 US at 321).

Critically, while defendant knew that A.L. had accused him of rape, no accusatory

instrument was filed prior to defendant’s arrest (cf. People v Staley, 41 NY2d 789 [1977]),

and “[s]ince he was not arrested during the initial investigation, [defendant] was not subject

to the anguish or public opprobrium often surrounding pending charges” (Decker, 13 NY3d

at 15; see Marion, 404 US at 320-321).

For the entire pre-arrest period, defendant “enjoyed significant freedom with no

public suspicion attendant upon an untried accusation of crime” (Vernace, 96 NY2d at 888

[declining to dismiss despite 17-year delay in murder case where there was no pretrial

incarceration and no impairment or prejudice to the defense]). After being initially

interviewed by police, defendant had no contact with them for over three years. Far from

being the object of public ire and constant stress, defendant was free to live his life to the

point where defendant’s attorney barely recalled the case when he was contacted a second

time to secure the DNA sample. Moreover, because defendant was immediately made

aware of A.L.’s rape accusation, defendant could retain any evidence or interview any

witnesses (see Barker v Wingo, 407 US 514, 532 [1972] [in considering prejudice to the

defendant, “the most serious” defense interest “which the speedy trial right was designed

8 For example, by the time of trial, A.L. and C.P. had broken up, creating a risk that C.P. might not be willing to testify, and J.D., A.L.’s former best friend, and defendant were married. - 21 - - 22 - No. 18

to protect” is “to limit the possibility that the defense will be impaired” such as through

loss of memory or witness disappearance]). Thus, “the record does not demonstrate undue

prejudice to the defense” (id.).

Given the speculative basis for finding that any prejudice occurred here, this factor

also militates against dismissal.

Extent of the Delay: As the majority has acknowledged, the relevant delay here is

31 months, not four years, as measured between law enforcement’s receipt of the second

supplemental biological sciences report on April 5, 2010, indicating a mixture of DNA

including that of an unknown male, and submission of the Abe A. warrant application for

defendant’s DNA on November 9, 2012. Plainly, this delay was considerable and weighs

in defendant’s favor. But it is far from dispositive (see Decker, 13 NY3d at 15; People v

Wiggins, 31 NY3d 1, 11 [2018] [internal quotation marks omitted] [six-year postindictment

delay in murder prosecution, during which defendant was incarcerated, was

“extraordinary” but “not in itself decisive”]). Because of the severity of the crime, any

delay here must be assessed in the same manner as delays in murder prosecutions, in which

far greater delays have been tolerated (see id.; Decker, 13 NY3d at 15 [15-year

preindictment delay in murder investigation was “substantial” but not dispositive]; see also

Vernace, 96 NY2d at 888 [17-year delay in murder case was “extensive” but “other factors

favor the prosecution”]). The majority ignores this line of case law, instead making the

inappropriate comparison between the delay here and that in Staley, where the defendant

was convicted of unauthorized use of a vehicle (majority op at 8-9).

- 22 - - 23 - No. 18

Importantly, even had the legislature not repealed the statute of limitations for first-

degree rape, this prosecution would have fallen within the pre-amendment five-year statute

of limitations (see People v Velez, 22 NY3d 970, 972 [2013] [“the charges against

defendant were filed within the statute of limitations period and no special circumstances

exist impairing his right to a fair trial”]). Thus, while the delay is significant and favors

defendant, it is nowhere near so long as to manifestly deprive defendant of his due process

rights.9

Reason for the delay: The People lack a credible justification for the 31-month

delay in seeking a search warrant for defendant’s DNA. But there is no evidence that their

actions, or lack thereof, were taken in bad faith toward defendant, with the aim of

prejudicing his ability to defend himself.10 While good faith generally immunizes a case

from dismissal based on pre-accusatory instrument delay, the absence of good faith does

not, in and of itself, require dismissal (see Wiggins, 31 NY3d at 13). In other words, due

process tolerates (1) indefinite, good-faith preindictment delay (see id.; People v Singer,

44 NY2d 241, 254 [1978]), (2) some, but not indefinite delay attributable neither to the

9 Indeed, the trial court erroneously believed that the five-year statute of limitations for first-degree rape prosecutions was in place at the time of defendant’s prosecution and nevertheless determined that, upon balancing the Taranovich factors, including “that complainant was physically helpless and incapable of consent” and “the absence of any demonstrated prejudice,” the delay here did not violate defendant’s due process rights. The Appellate Division, in affirming defendant’s conviction, did not correct the court’s error. 10 In characterizing the dissent as suggesting that law enforcement’s actions or attitudes toward the victim do not constitute bad faith, the majority confuses the bad faith analysis (majority op at 13). Law enforcement’s mistreatment of an innocent victim, or even bad faith toward a victim, does not constitute bad faith toward a defendant. - 23 - - 24 - No. 18

People’s good or bad faith (see Fuller, 57 NY2d at 159 [“unexplained and unreasonable

delay in commencing a prosecution may constitute a denial of due process”]; Doggett v

United States, 505 US 647, 656-657 [1992] [“Between diligent prosecution and bad-faith

delay, official negligence in bringing an accused to trial occupies the middle ground”];

Barker, 407 US at 531 [“A deliberate attempt to delay the trial in order to hamper the

defendant should be weighted heavily against the government. A more neutral reason such

as negligence . . . should be weighted less heavily”), and (3) little to no delay resulting from

the People’s bad faith, such as an attempt to gain a tactical advantage over the defendant

by delaying a prosecution.

“The relevance of the People’s good faith” is greater for preindictment than

postindictment delay, such that a longer delay will be tolerated (Wiggins, 31 NY3d at 12).

Necessarily then, that law enforcement proceeded with no bad faith must also mean more

in the preindictment context, particularly where there has been no showing of prejudice

(see Doggett, 505 US at 657 [“to warrant granting relief, negligence unaccompanied by

particularized trial prejudice must have lasted longer than negligence demonstrably causing

such prejudice”]). After all, following a lengthy preindictment delay that was not

occasioned by good cause, a defendant only “may be entitled to dismissal” where there is

“no showing of special prejudice” after a proper balancing of all factors (Singer, 44 NY2d

at 254). In Singer, the Court emphasized consideration of the People’s possible bad faith

in delaying prosecution (as the dissent recognized [id. at 257-258] [Gabrielli, J.,

dissenting]), appreciating its critical importance in light of defendant’s lack of actual

prejudice, and opined that the defendant’s due process rights might have been violated

- 24 - - 25 - No. 18

because these other factors tipped the balance in the defendant’s favor (id. at 254-

255). Indeed, the Court remitted the case for a hearing on this issue alone. But in

suggesting that a defendant must never show actual prejudice, even when there is no bad

faith, the majority turns speedy trial precedent on its head.11 Because defendant can

establish little to no actual prejudice here, the People’s lack of bad faith dilutes the

significance of this factor, especially in light of the seriousness of the crime.

Though this factor weighs in defendant’s favor, it does not have the determinative

significance that the majority ascribes to it. In the context of one of our society’s gravest

crimes, where defendant “rel[ies] solely on the real possibility of prejudice inherent in any

extended delay” (Marion, 404 US at 325-326), it cannot be the end of the discussion. As

this Court recently reiterated, “[t]he Taranovich framework is a holistic one” (People v

Johnson, 39 NY3d 92, 96 [2022]). Yet the majority prioritizes this factor above the others,

dismissing the case ostensibly to teach law enforcement a lesson and thereby substituting

the exclusionary rule’s goal of “deter[ring] improper conduct on the part of law

enforcement officials” (People v Logan, 25 NY2d 184, 193 [1969]) for Taranovich

balancing.

And while we cannot say for certain whether the delay was specifically attributable

to investigators’ disbelief of A.L.’s account of the incident, or their apathy toward her

trauma, undoubtedly the delay was a product of enduring cultural attitudes toward sexual

11 Of course, a defendant does not carry the burden of demonstrating a lack of good cause for the delay (see majority op at 12-13). But while the People here might not be able to justify the delay, they have certainly demonstrated a lack of bad faith toward defendant. - 25 - - 26 - No. 18

violence. Sexual assault victims have traditionally faced skepticism when reporting attacks

to law enforcement, due to the deeply entrenched prejudices surrounding sexual assault,

including “misconceptions” about consent and false reporting (Taylor, 75 NY2d at 288-

289). These perspectives have infected both our culture, and law enforcement’s handling

of these cases, resulting in the premature ending of rape investigations, closing cases as

based on “unfounded” allegations, and devoting less time and resources to investigating

such cases (see Deborah Tuerkheimer, Incredible Women: Sexual Violence and the

Credibility Discount, 166 U Pa L Rev 1, 31-32 [2017]).

Despite continuing efforts to undo past harms resulting from the debasing treatment

of victims of sex crimes, particularly where, as here, the parties are known to each other,

the structural barriers that victims confront in pursuing sexual assault prosecutions still

persist. Allowing a defendant to benefit from a delay that caused no actual harm to him is

incongruous with Singer’s aim of balancing a defendant’s due process rights with society’s

interest in processing serious cases and holding perpetrators accountable. Such outcomes

are reserved for the most extraordinary of circumstances and are so sporadic that this Court

has never—until today—dismissed an accusatory instrument based solely on the length of

the delay (see Taranovich, 37 NY2d at 445 [“this court has steadfastly refused to set forth

a per se period beyond which a criminal prosecution may not be pursued”]). In doing so,

the majority imposes a de facto 31-month limitation on first-degree rape investigations.

In creating a rule that will systemically bar countless victims from obtaining justice

in the event law enforcement fails “to recognize the seriousness of sexual assault,”

(majority op at 17), the majority has only reaffirmed rape culture’s pernicious grasp on our

- 26 - - 27 - No. 18

criminal justice system. Its opinion will not deter this type of behavior by law enforcement,

but instead be weaponized against victims and used in hindsight to rationalize closing long-

running rape investigations and dismissing prosecutions. The majority, dubiously asserting

that reversing the rape conviction here will benefit future rape victims and the public

(majority op at 19), fails to appreciate the practical implications of the precedent that they

are creating: if law enforcement negligently delays rape investigations, women’s voices

will continue to be stifled, rapists held unaccountable, and jury verdicts discarded. It is

difficult to comprehend how that result protects victims or our communities. Moreover, it

is no comfort to this victim to hear the old refrain that next time it will be different; next

time, your voice will be heard.

Using the long-standing sensitive balancing test as required by our precedent, due

process does not require the drastic remedy of dismissing this case. Where the crime is of

the utmost severity, defendant was not incarcerated, there was no public accusation, and

defendant has shown no actual prejudice from the delay, dismissal of the accusatory

instrument is unwarranted. The legislature’s clear assertion of the strong societal interest

in prosecuting rape cases, compounded with the heightened importance of rape victims

having their day in court, cannot be undervalued in our balancing analysis. Overzealous

dismissal of accusatory instruments for the delay in bringing those instruments improperly

infringes on the public interest in bringing accused persons to trial (cf. United States v

Ewell, 383 US 116, 121 [1966]), particularly where those crimes present the most

consequential, heinous threats to the safety and health of our society. Despite much

- 27 - - 28 - No. 18

progress, and a cultural reckoning surrounding sexual violence and power dynamics, it is

clear from today’s decision that there is much work to be done.

Because defendant’s remaining contentions also lack merit, I would affirm the

Appellate Division order.

Order reversed and indictment dismissed. Opinion by Judge Wilson. Acting Chief Judge Cannataro and Judges Rivera and Troutman concur. Judge Garcia dissents for the reasons stated in so much of the majority opinion of Justice Christine M. Clark at the Appellate Division that upheld the denial of the motion to dismiss the indictment on constitutional speedy trial grounds (see 196 AD3d 735, 737 [3d Dept 2021]). Judge Singas dissents and votes to affirm in an opinion.

Decided March 16, 2023

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