Opinion
2011-11-29
The PEOPLE, etc., respondent, v. Robert PERRY, appellant.
Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel; David Blondell on the brief), for respondent.
Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel; David Blondell on the brief), for respondent.
Appeal by the defendant pursuant to CPL 450.10(5) from an order of the Supreme Court, Richmond County (Rienzi, J.), dated February 4, 2010, which denied, without a hearing, his motion pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police.
ORDERED that the order is affirmed.
Contrary to the defendant's contention, the Supreme Court correctly determined that, despite certain changes in the law relevant to motions pursuant to CPL 440.30(1–a) ( see CPL 440.30[1–a][b]; People v. Pitts, 4 N.Y.3d 303, 311, 795 N.Y.S.2d 151, 828 N.E.2d 67) since the time of the defendant's prior unsuccessful motion pursuant thereto ( see People v. Perry, 295 A.D.2d 452, 743 N.Y.S.2d 303), the defendant was still required to demonstrate that there exists a reasonable probability that the verdict would have been more favorable to him if a DNA test had been conducted on the evidence at issue, and if the results had been admitted at the subject trial ( see CPL 440.30[1–a] ). The defendant failed to make such a showing. Under such circumstances, the Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police ( see People v. Pitts, 4 N.Y.3d at 311, 795 N.Y.S.2d 151, 828 N.E.2d 67; People v. Bolling, 65 A.D.3d 1054, 1054, 884 N.Y.S.2d 869; see also e.g. People v. Hai Guang Zheng, 69 A.D.3d 878, 879, 892 N.Y.S.2d 781; cf. People v. Barnwell, 6 A.D.3d 1147, 775 N.Y.S.2d 659, revd. sub. nom. People v. Pitts, 4 N.Y.3d 303, 795 N.Y.S.2d 151, 828 N.E.2d 67).