Opinion
2016–01747 Ind. No. 3295/06
11-12-2020
The PEOPLE, etc., respondent, v. Mark BAUGH, appellant.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Hannah X. Scotti of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Hannah X. Scotti of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER Appeal by the defendant pursuant to CPL 450.10(5) from an order of the Supreme Court, Queens County (Michael Aloise, J.), dated January 19, 2016. The order, insofar as appealed from, denied that branch of the defendant's motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence.
ORDERED that the order is affirmed insofar as appealed from.
After a jury trial, the defendant was convicted of, among other crimes, robbery in the first degree and burglary in the first degree upon evidence that he and his nephew accosted the complainant at gunpoint and took, among other items, cash, jewelry, and cigarettes. After this Court affirmed the defendant's conviction (see People v. Baugh, 91 A.D.3d 965, 937 N.Y.S.2d 599 ), the defendant moved, inter alia, pursuant to CPL 440.30(1–a) for forensic DNA testing of a shell casing recovered at the crime scene. In an order dated January 19, 2016, the Supreme Court, among other things, denied that branch of the defendant's motion. The defendant appeals.
"Pursuant to CPL 440.30(1–a)(a)(1), the court is required to grant a defendant's application for forensic DNA testing of specified evidence where it determines ‘that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant’ " ( People v. Dorcinvil, 175 A.D.3d 1421, 1422, 109 N.Y.S.3d 457, quoting CPL 440.30[1–a][a][1] ). The defendant failed to demonstrate that there exists a reasonable probability that the verdict would have been more favorable to him if DNA tests had been conducted on the shell casing and if the results of those tests had been admitted at trial (see CPL 440.30[1–a] ; People v. Brown, 106 A.D.3d 927, 964 N.Y.S.2d 664 ). Accordingly, we agree with the Supreme Court's determination denying that branch of the defendant's motion which was pursuant to CPL 440.30(1–a) for DNA testing of the shell casing recovered from the crime scene.
RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur.