People v. Garcia

65 A.D.3d 932, 886 N.Y.S.2d 110

Opinion

— Order, Supreme Court, New York County (Michael J. Obús, J.), entered on or about August 8, 2008, which, to the extent appealed from, denied an evidentiary hearing on defendant’s CPL 440.30 (1-a) motion for DNA testing, unanimously affirmed.

The People presented detailed affidavits by the detectives and the prosecutor, based on personal knowledge, setting forth their diligent but unsuccessful efforts to locate certain items recovered in 1995 from the scene of a homicide. This satisfied the People’s burden to show that the evidence on which forensic DNA testing was to be performed could no longer be located and was thus no longer available for testing (see People v Pitts, 4 NY3d 303, 311-312 [2005]). Concur—Gonzalez, EJ., Andrias, Catterson, Acosta and Abdus-Salaam, JJ.