People v. Rispoli

1 A.D.2d 538, 767 N.Y.S.2d 263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2003
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated January 31, 2002, which, without a hearing, denied his motion pursuant to CPL 440.30 (1-a) to direct the performance of a forensic DNA test on certain evidence.

Ordered that the order is affirmed.

The Supreme Court properly denied the defendant’s motion pursuant to CPL 440.30 (1-a) for forensic DNA testing on certain evidence recovered from the victim. The defendant failed to show that if the specified evidence was tested and the test results admitted into evidence, “there exists a reasonable probability that the verdict would have been more favorable to [him]” (CPL 440.30 [1-a]; People v McCloud, 303 AD2d 604 [2003], lv denied 100 NY2d 584 [2003]; People v McDonald, 298 AD2d 466 [2002]; People v Perry, 295 AD2d 452 [2002]). Smith, J.P., Krausman, McGinity and Rivera, JJ., concur.