Opinion
KA 00-01352
November 15, 2002.
Appeal from an order of Onondaga County Court (Fahey, J.), entered January 17, 2002, which denied defendant's motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence from a trial in 1978.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. ANTHONY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
County Court properly denied defendant's motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence from a trial in 1978. Defendant failed to meet his burden of establishing that the evidence is still in existence ( see People v. Ahlers, 285 A.D.2d 664, lv denied 97 N.Y.2d 701; see also People v. Logan, 291 A.D.2d 459, lv denied 98 N.Y.2d 638).