In People v. Clark, the New York Court of Appeals throw out a first degree murder charges because the People, the prosecutor, did not act diligently in obtaining evidence.
The issue was ” whether the Appellate Division erred in holding that the People were chargeable with the period of delay of 161 days for DNA testing after having failed to exercise due diligence in seeking defendant’s DNA exemplar in order to conduct comparative testing with the DNA obtained by the Office of Chief Medical Examiner (OCME) from the gun that was the subject of weapons offenses charged in the indictment.” Id. at 1
In the end, the Court of Appeals affirmed the dismissal of the attempted first degree murder indictment on speedy trial grounds. While DNA had been recovered from the gun involved, a swab of the Defendant’s DNA was not taken until nine months after indictment:
CPL 30.30, the “so-called ‘speedy trial’ statute,” is a longstanding fixture in our State’s prosecution of criminal actions and was specifically intended “to address delays occasioned by prosecutorial inaction” (People v McKenna, 76 NY2d 59, 63 ). In 1972, when the legislature enacted CPL 30.30, it was accompanied by a memorandum of the State Executive Department, Crime Control Counsel which declared “the purpose of the bill [is to] ‘promote prompt trials for defendants in criminal cases,'” noting “that ‘[t]he public, defendants and the victims of crimes all have a strong interest in the prompt trial of criminal cases'” (People v Anderson, 66 NY2d 529, 535 n 1 , quoting 1972 McKinney’s Session Laws of NY, at 3259).
“Pursuant to CPL 30.30 (1)(a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense” (People v Carter, 91 NY2d 795, 798 ). “CPL 30.30 (4) lists the periods which are to be excluded from the computation of time within which the People are required to be ready” (McKenna, 76 NY2d at 62). CPL 30.30 (4) (g), the statutory provision at issue here, allows the exclusion of “periods of delay occasioned by exceptional circumstances” in obtaining unavailable evidence “material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence” (CPL 30.30  [g]).
The time delay here was not exceptional circumstances. As one who reads this can imagine, you would assume that the People would act in an appropriate manner (not delay) to obtain such evidence:
“The time to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation as an exceptional circumstance. To invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence. If the exclusion ‘is to be given reasonable effect and  is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it’ … . In addition, while we have recognized that ‘[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),’ we have stated ‘that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction’ … . Here, as a result of the People’s inaction in obtaining defendant’s DNA exemplar, the 161-day period of delay to test the DNA and to produce the DNA report was not excludable…”
In so holding, the Court of Appeals states that “[t]o invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence.” The People cannot simply sit on their heels as the Defendant appears, time after time, and suffers through a prosecution. “If the exclusion ‘is to be given reasonable effect and  is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it’ ” Id. at 3 (citing People v Washington, 43 NY2d 772, 774 ). While “‘[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),’ ” the Court of Appeals has stated “that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” (People v Price, 14 NY3d 61, 64 , quoting People v Smietana, 98 NY2d 336, 341 ).
Conclusion: ” There is no reasonable excuse for the People’s delay in seeking a court order for defendant’s DNA exemplar. The weapon was promptly submitted to OCME by law enforcement for examination and the People waited until May 2009, almost nine months after the indictment, to ask OCME what results, if any, were obtained from the scientific testing performed on the gun swabs. CPL 30.30 is a People-ready rule, and the Appellate Division correctly held that the prosecutorial inaction in this case contravenes CPL 30.30.”