People v. Allen

47 A.D.3d 543, 850 N.Y.S.2d 400

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Robert G. Seewald, J.), entered on or about December 27, 2006, which denied defendant’s CPL 440.30 (1-a) motion for DNA testing and his CPL 440.10 motion to vacate a judgment of Supreme Court, Bronx County (Elbert Hinkson, J.), rendered May 8, 1989, convicting him, upon his plea of guilty, of rape in the first degree, unanimously affirmed.

CPL 440.30 (1-a) does not permit persons who pleaded guilty to seek DNA testing of forensic evidence (People v Lebron, 44 AD3d 310 [2007]; People v Byrdsong, 33 AD3d 175 [2006], lv denied 7 NY3d 900 [2006]). There is no merit to defendant’s argument that, since he was originally convicted after trial in 1983 and then pleaded guilty in 1989 following this Court’s reversal of his trial conviction (140 AD2d 229 [1988], Iv denied 72 NY2d 1043 [1988]), his case presents a “hybrid” situation and a trial “resulted” in the judgment. On the contrary, the trial resulted only in a judgment that this Court vacated; the ultimate judgment resulted solely from a guilty plea.

The CPL 440.10 branches of defendant’s motion are likewise without merit. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.