Opinion
01-05-2017
The PEOPLE of the State of New York, Respondent, v. Mark BLOND Jr., Appellant.
G. Scott Walling, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
G. Scott Walling, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, EGAN JR., LYNCH and DEVINE, JJ.
DEVINE, J.Appeal from an order of the County Court of Schenectady County (Loyola, J.), entered April 15, 2015, which denied defendant's motion pursuant to CPL 440.30(1–a) for the performance of forensic DNA testing on specified evidence.
Defendant was convicted by a jury of offenses stemming from a plethora of criminal conduct that included, as is relevant here, his sexually assaulting an underage victim on multiple occasions (96 A.D.3d 1149, 946 N.Y.S.2d 663 [2012], lv. denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ). He was sentenced to a lengthy aggregate term of imprisonment and the conviction was upheld on appeal (id. ). In 2014, defendant filed a pro se motion pursuant to CPL 440.30(1–a) and argued that samples from the victim's blue jeans and T–shirt, as well as a sex toy that defendant used to violate the victim and other items collected from his residence, should be subjected to DNA testing. County Court denied the motion, and defendant now appeals.
We affirm. In order to succeed on his motion, defendant was obliged to "demonstrate that there [was] a reasonable probability that the verdict would have been more favorable to him if the testing he [sought] had been conducted" (People v. Dickson, 103 A.D.3d 989, 990, 962 N.Y.S.2d 380 [2013], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ; see CPL 440.30[1–a][a] ). A number of the items referenced by defendant have already been subjected to DNA testing and the results, which were entered into evidence at trial, were not helpful to his defense. Semen containing sperm matching the DNA profile of defendant, as well as other material consistent with the victim's DNA, was found on the jeans along with genetic material from two unknown individuals. Investigators further recovered DNA evidence from the sex toy—which belonged to defendant's wife—that was consistent with the DNA of defendant, the victim and an unknown donor. The T–shirt yielded nothing of relevance, with genetic material on it originating from an unknown female and at least one additional donor.
Defendant sought additional testing of those items, as well as the initial testing of others, in order to identify the unknown donors of genetic material. He suggested that the victim's account of events was incredible, asserting that the prior DNA test results were the result of the victim's clothing being intermingled with other dirty clothes in a hamper and her sexual activity with others. Defendant had unsuccessfully advanced those claims at trial, however, and the motion papers provided nothing beyond base speculation as to how additional DNA testing would render them more believable. Thus, County Court properly denied the motion without a hearing (see People v. Swift, 108 A.D.3d 1060, 1061–1062, 968 N.Y.S.2d 782 [2013], lv. denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ; People v. Brown, 36 A.D.3d 961, 961–962, 827 N.Y.S.2d 742 [2007], lvs. denied 8 N.Y.3d 919, 920, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007] ).
ORDERED that the order is affirmed.
PETERS, P.J., McCARTHY, EGAN JR. and LYNCH, JJ., concur.