People v. Jones

307 A.D.2d 721, 761 N.Y.S.2d 928

Opinion

—Appeal from that part of an order of Supreme Court, Erie County (Wolfgang, J.), entered March 7, 2000, that denied defendant’s motion pursuant to CPL 440.30 (1-a) for forensic DNA testing of evidence.

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

Memorandum: Defendant appeals from that part of an order that denied his motion pursuant to CPL 440.30 (1-a) for forensic DNA testing of evidence from his trial. As limited by his brief, defendant contends that Supreme Court erred in denying his motion only to the extent that he sought retesting of a washcloth that the assailant used to clean semen from the first victim. The washcloth was tested for DNA material before trial and none was found. Because CPL 440.30 (1-a) does not provide for retesting for DNA material, the court properly denied the motion. In any event, because the DNA material found on other evidence matched defendant’s DNA, there is no reasonable probability that the verdict would have been favorable to defendant even if the washcloth contained different DNA material (see id.; People v Jones, 236 AD2d 846, 847-848 [1997], lv denied 90 NY2d 859 [1997]). Present — Pigott, Jr., P.J., Green, Pine, Wisner and Lawton, JJ.