the People: Assistant District Attorney L. Newton Mendys,
Bronx County District Attorney's Office
Defendant: Eliot Kaplan, Esq.
L. BARRETT, J.
motion to dismiss the indictment on the ground that the
approximately twenty-seven year delay in commencing the
instant prosecution is a violation of his due process right
to prompt prosecution is denied. Based upon the record, the
People have satisfied their burden of establishing that the
delay in prosecuting defendant was not unreasonable. See
People v. Staley, 41 N.Y.2d 789, 791 (1977). In reaching
this conclusion the Court has considered the following
factors: 1) the extent of the delay; 2) the reasons 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. See People v.
Taranovich, 37 N.Y.2d 442 (1975). 
the delay in arresting defendant was indeed substantial,
defendant's claim that the prosecution has not
established good cause for the delay is unavailing.
Defendant, a thrice-convicted violent felon,  now stands
indicted for the horrific murder of Noellis Bayanilla. At
5:00 a.m. on August 6, 1989, the unconscious body of then
17-year-old Noellis Bayanilla was discovered in the rear
courtyard of 2645 Morris Avenue. It was determined that Ms.
Bayanilla was thrown off of the five-story building's
rooftop. Ms. Bayanilla sustained massive injuries, including
multiple broken bones and internal injuries and after two
days of unimaginable suffering, succumbed to her injuries and
died. The New York City Office of Chief Medical Examiner
(OCME) found that Ms. Bayanilla sustained major and severe
blunt force trauma and ruled her death to be a homicide. From
the outset of the investigation, defendant was a suspect, as
he was observed the morning of the incident with Ms.
Bayanilla both outside 2645 Morris Avenue and then entering
2645 Morris Avenue with her. However, no witnesses observed
defendant and Ms. Bayanilla on the roof and no witnesses
observed defendant push Ms. Bayanilla off the rooftop.
Moreover, no physical evidence recovered connected defendant
to the murder, and when defendant was questioned by the
police he denied murdering Ms. Bayanilla and claimed he was
at home at the time of her murder. Due to the insufficiency
of the evidence, until 2016, neither defendant nor anyone
else was arrested for murdering Ms. Bayanilla. (See
Affirmation of ADA Newton Mendys at pp. 2-3.)
investigation remained dormant without any new leads until
June of 2015, when Detective Matthew McCrosson was assigned
to investigate the homicide of Ms. Bayanilla. In reviewing
the case file, McCrosson discovered that fingernail clippings
had been collected from Ms. Bayanilla during the autopsy
performed by OCME at the time of her death. McCrosson
ascertained that the clippings had been preserved and
requested that OCME perform DNA testing on them. OCME
performed both STR (short tandem repeats) and Y-STR testing
and analysis on the clippings and, on March 16, 2016, issued
a report indicating that a DNA profile of Male Donor A was
generated from the fingernail clippings and that it matched
defendant's DNA profile that had been obtained from
defendant during the course of his 2003 rape case. (See
Affirmation of ADA Newton Mendys at p. 4.) Having acquired
the new DNA evidence, Detective McCrosson re-located and
re-interviewed the witnesses to the murder. As a result,
defendant was arrested and subsequently indicted and charged
with murder in the second degree and manslaughter in the
first degree, and, on April 7, 2016, he was arraigned on the
on the above, although the delay here was extraordinary, the
Court is satisfied that the People have met their burden of
demonstrating good cause for the delay. During the vast
majority of the time period between the death of Ms.
Bayanilla and defendant's arrest, the People had a good
faith basis to believe that there was insufficient evidence
to arrest and prosecute defendant for the murder of Ms.
Bayanilla. When the People acquired additional evidence that
forms the basis for the instant prosecution, they
expeditiously brought charges against defendant.
contention that the NYPD should not be excused for their
failure to request DNA testing on the fingernail clippings
prior to 2015 is without merit. To be sure, in the serenity
of chambers, it would be easy to play Monday morning
quarterback and conclude that the NYPD should have acted
sooner and submitted the clippings to OCME earlier. However,
to reach this conclusion would be to ignore the history of
the development of DNA testing, and would also fail to give
due deference to the NYPD in prioritizing their resources
between new and old cases. Notably, in 1989-1990, when the
instant investigation was still active, OCME was not yet
accredited to perform forensic DNA testing.  See
Indeed, OCME first began what is now perceived as rudimentary
DNA testing in 1996, and even then there was no database into
which DNA profiles generated from case evidence could be
uploaded and DNA profiles from convicted felons could be
stored.  Indeed, by the time such a database
existed and defendant's DNA profile from his 2003 rape
case would have been stored in it, the investigation into Ms.
Bayanilla's death had long become inactive. Under these
circumstances, if the court were to find fault in the NYPD
for not requesting DNA testing on the clippings prior to
2015, in effect, it would be imposing upon the NYPD an
unrealistic requirement to keep investigations open
indefinitely. This the Court will not do. Indeed, it is the
court's view that for having reopened a "cold"
case when both DNA testing and the DNA databases had
developed to a point that enabled the DNA match between
defendant and the clippings, the NYPD, and, in particular,
Detective McCrosson, should be lauded, rather than faulted.
there is no indication that the decision to bring the instant
charges, notwithstanding the lengthy time period between the
incident and the commencement of the instant criminal action,
was made on anything other than good faith, the court finds
good cause for the pre-indictment delay. See People v.
Decker, supra, 13 N.Y.3d at 15 (good cause for
15 year delay found where defendant charged with murder and
People demonstrated that decision not to proceed with
prosecution earlier was based on a good-faith determination
that the evidence was insufficient at that time); People
v. Fleming, 141 A.D.3d 408 (1st Dept. 2016)(substantial
pre-indictment delay justified in murder case where delay
caused by prosecution's need to strengthen case based on
circumstantial evidence); People v. Allen, 134
A.D.3d 730 (2d Dept. 2015)(extensive pre-indictment delay
justified where defendant charged with murder and further
investigation was conducted); People v. Nazario, 85
A.D.3d 577 (1st Dept. 2011)(12 year investigative delay was
satisfactorily explained where defendant charged with murder
and People established that the delay was due to the
People's attempts to acquire substantial corroborating
evidence and not due to bad faith).
the remainder of the Taranovich factors all strongly
militate in favor of denying the instant claim. Not only has
defendant been indicted for murder, the most serious of
offenses, but the particulars of this murder are particularly
grotesque. Indeed, it is difficult to find words to describe
the terror this innocent, teenage girl must have felt when
she was pushed off the rooftop and the suffering that she
must have endured in the two days that she clung to life.
Moreover, defendant was incarcerated on this charge for only
a few days before he was indicted on March 18, 2016,
and defendant has failed to advance any claim or contention
that his defense will be significantly impaired by the delay.
See People v. Decker, supra, 13 N.Y.3d at
16 (court finds notwithstanding the fact that with a 15 year
delay witnesses' memories will fade and witnesses will be
harder to locate, defendant still failed to establish that
the defense was significantly impaired); People v.
Vernace, supra, 96 N.Y.2d at 887 (extensive
delay not a basis for a finding of a due process violation
even though such delay may result in some prejudice to
defendant; court notes that delay will also make the case
against defendant more difficult to prove). Having failed to
establish prejudice, or any other basis for dismissal on this
ground, defendant's motion to dismiss the indictment
based on a violation of his due process right to prompt
prosecution is denied. See People v. Guerrero, 126
A.D.3d 613 (1st Dept. 2015)(no constitutional speedy trial
violation where 13-year delay and People's inability to
proceed explained by inability to prosecute defendant until
DNA match). However, as the People concede, Count Two
charging Manslaughter in the First Degree is dismissed as
the decision and order of the Court.
 Although the Taranovich factors
cited above specifically apply to a defendant's
constitutional right to a speedy trial, they are also to be
employed to determine whether there has been a violation of a
defendant's due process right to prompt prosecution.
See People v. Decker, 13 N.Y.3d 12, ...