Opinion
2013-12-26
The PEOPLE, etc., respondent, v. Lamonte JOHNSON, appellant.
Lamonte Johnson, Ossining, N.Y., appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Lamonte Johnson, Ossining, N.Y., appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Appeal by the defendant from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated March 26, 2010, as denied, without a hearing, his motion pursuant to CPL 440.30(1–a) for DNA testing of certain evidence.
ORDERED that the order is affirmed insofar as appealed from.
The Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL 440.30(1–a) for DNA testing of certain evidence since the defendant failed to show that there was a reasonable probability that the verdict would have been more favorable to him had DNA tests been performed ( seeCPL 440.30[1–a]; People v. Perry, 89 A.D.3d 1114, 1115, 933 N.Y.S.2d 584; People v. Bolling, 65 A.D.3d 1054, 1054, 884 N.Y.S.2d 869; People v. Weay, 54 A.D.3d 695, 695, 862 N.Y.S.2d 802).
Although the defendant also moved to vacate the judgment of conviction pursuant to CPL 440.10, the issues raised in that motion are not properly before this Court, as he was denied leave to appeal from so much of the order as denied that motion by decision and order on application of this Court dated August 12, 2010 ( see People v. Jean, 74 A.D.3d 1234, 1234, 902 N.Y.S.2d 432; People v. DeLuca, 45 A.D.3d 777, 778, 847 N.Y.S.2d 198; People v. Rivas, 206 A.D.2d 549, 550, 614 N.Y.S.2d 753). MASTRO, J.P., ROMAN, MILLER and HINDS–RADIX, JJ., concur.