Opinion
2013-05-15
The PEOPLE, etc., respondent, v. James BROWN, appellant.
James Brown, Malone, N.Y., appellant pro se. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
James Brown, Malone, N.Y., appellant pro se. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.
Appeal by the defendant pursuant to CPL 450.10(5) from an order of the Supreme Court, Suffolk County (Condon, J.), dated January 9, 2012, which denied, without a hearing, his motion pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police.
ORDERED that the order is affirmed.
After a trial, the defendant was convicted of rape in the first degree, sodomy in the first degree, and burglary in the second degree. The defendant subsequently moved pursuant to CPL 440.30(1–a) for forensic DNA testing of loose trace materials obtained from tape lifts made by forensic scientists at the Suffolk County Crime Laboratory from the complainant's sheets, blanket, washcloth, and pillow case, which were recovered by the police.
The defendant failed to demonstrate that there exists a reasonable probability that the verdict would have been more favorable to him if DNA tests had been conducted on the subject materials and if the results of those tests had been admitted at trial ( seeCPL 440.30[1–a] ). Accordingly, the Supreme Court properly denied the defendant's motion without a hearing ( see People v. Pitts, 4 N.Y.3d 303, 311, 795 N.Y.S.2d 151, 828 N.E.2d 67;People v. Bush, 90 A.D.3d 945, 945, 935 N.Y.S.2d 73;People v. Perry, 89 A.D.3d 1114, 1114–1115, 933 N.Y.S.2d 584;People v. Hai Guang Zheng, 69 A.D.3d 878, 879, 892 N.Y.S.2d 781;People v. Fuentes, 44 A.D.3d 871, 871, 842 N.Y.S.2d 923;People v. King, 38 A.D.3d 1066, 1067, 831 N.Y.S.2d 589;People v. Brown, 36 A.D.3d 961, 961–962, 827 N.Y.S.2d 742).