=================================================================

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

No. 127 

The People &c.,

 Respondent,

 v.

Steven Henderson, 

 Appellant.

Leila Hull, for appellant.

Ann Bordley, for respondent.

DiFIORE, Chief Judge:

After a jury trial, defendant was convicted of rape in

the first degree and criminal sexual act in the first degree (two

counts). Prior to trial, defendant filed a CPL 30.30 motion to

- 1 -
- 2 - No. 127

dismiss the indictment on the ground that he was deprived of his

statutory right to a speedy trial. The trial court, as relevant

here, excluded the periods of delay for the DNA testing process

as exceptional circumstances under CPL 30.30 (4) (g) and denied

defendant's speedy trial motion without a hearing. Defendant

claims on direct appeal that he was denied effective assistance

of counsel because his trial counsel's motion to dismiss the

indictment on CPL 30.30 grounds failed to argue that the People

should be charged for certain periods of delay due to the testing

of the DNA evidence by the Office of Chief Medical Examiner

(OCME) in successive stages. The record does not support

defendant's contention. 

Defendant was charged with acting in concert with

multiple accomplices in a sexual assault. As the People

explained at defendant's arraignment on the indictment on January

7, 2009, OCME had generated one full male DNA profile from the

sexual assault evidence collection kit and extra alleles were

found on the semen samples from the victim's jeans. Defendant

then consented to provide his DNA exemplar. On June 24, 2009,

the People stated that OCME had not yet finished its final report

but reported that it was "a no-match." The case was adjourned to

August 13, 2009 for a final conference, and on that date, the

People reported that OCME did not have its final report and had

not reported the results of the DNA analysis. After inquiry from

the court, the People explained that after receiving the testing

- 2 -
- 3 - No. 127

results from the semen sample, additional testing had been

performed on the fingernail screens.

As we have previously stated, "[v]ery rarely, a single

lapse by otherwise competent counsel compels the conclusion that

a defendant was deprived of his constitutional right to effective

legal representation" (People v Turner, 5 NY3d 476, 478 [2005]). 

In People v Brunner (16 NY3d 820 [2011]), a case where defense

counsel failed to file a CPL 30.30 motion entirely, we held that

defendant's ineffective assistance of counsel claim failed as

there was "nothing clear cut about his CPL 30.30 claim" and "the

governing law was unfavorable" (16 NY3d at 821). 

Here, defendant argues that he was denied effective

assistance of counsel because his trial counsel failed to argue

that the June 24, 2009 and August 13, 2009 adjournments, totaling

86 days, were chargeable to the People due to their alleged

failure to act with due diligence in securing DNA testing (see

CPL 30.30 [4] [g]). Defendant's claim that the People did not

exercise due diligence is based on the supposition that the

People did not seek testing of the fingernail screens as part of,

or at the same time as, the sexual assault evidence collection

kit and instead permitted OCME to do sequential testing of the

evidence after defendant had been excluded from the semen sample. 

In essence, defendant contends that had defense counsel argued

that those delays were chargeable to the People under CPL 30.30,

the indictment would have been dismissed. 

- 3 -
- 4 - No. 127

On this record, defense counsel was not ineffective for

failing to raise the argument that the People were not acting

with due diligence, as there is nothing in the record to

demonstrate that the People were not diligent in requesting DNA

testing on the evidence or that the manner in which the DNA

testing was conducted by OCME was inconsistent with standard

laboratory protocols. In addition, at the time of defendant's

CPL 30.30 motion, there already was Appellate Division authority

holding that the period of time needed to obtain the results of

DNA testing could be excluded from speedy trial computation as an

exceptional circumstance (see e.g. People v Robinson, 47 AD3d 847

[2d Dept 2008], lv denied 10 NY3d 869 [2008]). 

In sum, defendant's assumptions as to the protocols for

successive DNA testing are based on matters outside the record

and beyond review on this appeal. The ineffective assistance of

counsel claim that defendant presents to this Court is of the

type where "it would be better, and in some cases essential, that

an appellate attack on the effectiveness of counsel be bottomed

on an evidentiary exploration by collateral or post-conviction

proceeding brought under CPL 440.10" (People v Brown, 45 NY2d

852, 854 [1978]).

Accordingly, the order of the Appellate Division should

be affirmed. 

- 4 -
- 5 - No. 127

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Chief Judge DiFiore. Judges Pigott,

Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided October 25, 2016

- 5 -