Opinion
27 KA 17–01096
02-07-2020
The PEOPLE of the State of New York, Respondent, v. Otis SIMMONS, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals by permission of this Court from an order denying without a hearing his motion seeking, pursuant to CPL 440.10(1)(h), to vacate the judgment convicting him of various sex crimes on the ground of actual innocence and seeking, pursuant to CPL 440.30(1–a), the performance of DNA testing on a pubic hair that was admitted in evidence at his underlying trial. We affirm.
County Court properly denied without a hearing defendant's motion with respect to DNA testing inasmuch as that issue was previously raised and addressed on the merits on defendant's prior motion seeking the same relief (see CPL 440.10[3][b] ; People v. Simmons, 63 A.D.3d 1605, 1606, 879 N.Y.S.2d 774 (4th Dept. 2009), lv denied 12 N.Y.3d 929, 884 N.Y.S.2d 710, 912 N.E.2d 1091 [2009] ). In any event, the court also properly denied that part of the motion on the merits because "even if the mitochondrial DNA testing sought by defendant had been performed on the pubic hair, there is no reasonable probability that the verdict would have been more favorable to defendant" ( Simmons, 63 A.D.3d at 1606, 879 N.Y.S.2d 774 ).
Defendant contends that the court erred in summarily denying his motion with respect to his claim of actual innocence. Although we may refuse to consider the issue because it could have been raised on defendant's prior motions but was not, we nevertheless exercise our discretion to reach the merits (see People v. Pett, 148 A.D.3d 1524, 1524, 50 N.Y.S.3d 663 (4th Dept. 2017) ; People v. Hamilton, 115 A.D.3d 12, 20–21, 979 N.Y.S.2d 97 (2d Dept. 2014) ), and we conclude that the court properly denied that part of defendant's motion without a hearing inasmuch as defendant failed to make a prima facie showing of actual innocence warranting a hearing (cf. People v. Pottinger, 156 A.D.3d 1379, 1380–1381, 67 N.Y.S.3d 746 (4th Dept. 2017) ).