People v. Davis

299 A.D.2d 874, 749 N.Y.S.2d 204, 2002 N.Y. App. Div. LEXIS 10941

Opinion

Appeal from an order of Onondaga County Court (Fahey, J.), entered January 17, 2002, which denied defendant’s motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence from a trial in 1978.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: County Court properly denied defendant’s motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence from a trial in 1978. Defendant failed to meet his burden of establishing that the evidence is still in existence (see People v Ahlers, 285 AD2d 664, lv denied 97 NY2d 701; see also People v Logan, 291 AD2d 459, lv denied 98 NY2d 638). Present — Pine, J.P., Wisner, Hurlbutt, Kehoe and Burns, JJ.