Opinion
2015–05985 Ind. No. 1111–08
12-20-2017
The PEOPLE, etc., respondent, v. Eric G. WITHERSPOON, appellant.
Salvatore C. Adamo, New York, NY, for appellant. Emily Constant, Acting District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
Emily Constant, Acting District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDERAppeal by the defendant pursuant to CPL 450.10(5) from so much of an order of the County Court, Suffolk County (Braslow, J.), dated June 9, 2015, as denied, without a hearing, that branch of his motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police.
ORDERED that the order is affirmed insofar as appealed from.
The defendant challenges the denial of that branch of his motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police. However, trial evidence established that forensic DNA testing was performed on the evidence in question. Since CPL 440.30(1–a) does not provide for retesting of DNA material, the County Court properly denied, without a hearing, that branch of the defendant's motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police (see People v. Reed, 129 A.D.3d 1508, 1508–1509, 11 N.Y.S.3d 769 ; People v. Holman, 63 A.D.3d 1088, 1088, 880 N.Y.S.2d 559 ; People v. Jones, 307 A.D.2d 721, 722, 761 N.Y.S.2d 928 ).
LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.