People v. Hayes

284 A.D.2d 1008, 726 N.Y.S.2d 891, 2001 N.Y. App. Div. LEXIS 5825

Opinion

AD2d 939). In 1991 defendant was again convicted of murder in the second degree, and we affirmed the judgment (People v Hayes, 186 AD2d 1044, lv denied 81 NY2d 840). In 1997 defendant filed a motion pursuant to CPL 440.30 (1-a) seeking DNA testing of fingernail scrapings recovered from the victim. DNA technology was not available at the time of defendant’s trials. County Court denied that motion. Defendant filed a notice of appeal on January 7, 2000, but never perfected the appeal. On August 20, 2000, defendant filed a second motion pursuant to CPL 440.30 (1-a) seeking DNA testing, and the same County Court Judge granted the motion.

We agree with the People that the second motion was procedurally improper. Nevertheless, as a matter of discretion in the interest of justice, we treat defendant’s second motion as one to renew and conclude that it was properly granted. We conclude that there is a reasonable probability that the verdict would have been more favorable to defendant if a DNA test had been conducted on the victim’s fingernail scrapings and those test results had been admitted at trial (see, CPL 440.30 [1-a]). (Appeal from Order of Erie County Court, D’Amico, J.— CPL 440.30 [1-a].) Present — Green, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.