People v. Williams

128 A.D.3d 569, 8 N.Y.S.3d 568

Opinion

Order, Supreme Court, Bronx County (Denis J. Boyle, J.), entered on or about January 14, 2013, which, upon reargument, adhered to a prior order denying defendant’s CPL 440.30 (1-a) motion for DNA testing, unanimously affirmed.

The People presented detailed affidavits by personnel from the District Attorney’s Office, the Office of the Chief Medical Examiner and the Police Department setting forth their diligent but unsuccessful efforts to locate evidence from defendant’s 1984 trial, on which defendant sought to have DNA testing performed. This satisfied the People’s burden to show that the evidence could no longer be located and was thus no longer available for testing (see People v Pitts, 4 NY3d 303, 311-312 [2005]; People v Garcia, 65 AD3d 932 [1st Dept 2009], lv denied 13 NY3d 907 [2009]). Given these circumstances, we see no reason to remand for an evidentiary hearing or for any other purpose. Defendant does not adequately explain how a hearing would result in discovery of the evidence he seeks. Concur— Tom, J.P., Friedman, DeGrasse, Richter and Kapnick, JJ.