Opinion
2014-05-9
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Newnon Flax, Defendant–Appellant pro se.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Newnon Flax, Defendant–Appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from that part of an order denying his postjudgment motion pursuant to CPL 440.30(1–a) for DNA testing of a certain item of evidence secured in connection with his conviction of, inter alia, rape in the first degree (Penal Law § 130.35[1] ). This Court previously modified the judgment of conviction by vacating the sentence ( People v. Flax, 155 A.D.2d 894, 549 N.Y.S.2d 609,lv. denied76 N.Y.2d 734, 558 N.Y.S.2d 896, 557 N.E.2d 1192) and, on the appeal from the judgment after resentencing, we affirmed ( People v. Flax, 178 A.D.2d 1026, 580 N.Y.S.2d 898). Preliminarily, we note that the notice of appeal herein incorrectly states that defendant is appealing from the judgment, rather than the order denying the postjudgment motion. As a matter of discretion in the interest of justice, however, we treat the notice of appeal as valid ( seeCPL 460.10[6]; People v. Jones, 114 A.D.3d 1272, 1272, 980 N.Y.S.2d 862). Inasmuch as defendant's previous CPL 440.30(1–a) motion was denied, CPL 440.10(3)(b), made applicable to this motion pursuant to 440.30(2), permits but does not require denial of the motion. Under the circumstances of this case, we conclude that Supreme Court erred in denying the instant CPL 440.30(1–a) motion ( see People v. Tankleff, 46 A.D.3d 846, 847, 848 N.Y.S.2d 277;see also People v. Hayes, 284 A.D.2d 1008, 1009, 726 N.Y.S.2d 891,lv. denied97 N.Y.2d 641, 735 N.Y.S.2d 498, 761 N.E.2d 3).
The identification evidence at trial consisted of testimony from the complainant that, although she could not see her attacker, she recognized the voice as defendant's from the three words the attacker spoke when he grabbed her. The complainant also stated that she observed the profile of her attacker in the dark of night from three houses away as he was running from the scene. At trial, the complainant testified that, during a subsequent encounter, defendant made a statement indicating that the complainant “gave it to him.” The complainant also testified, however, that defendant, during that same subsequent encounter, denied ever touching her. In a posttrial statement to a probation officer, the complainant stated that, during that subsequent encounter, defendant had told the complainant that “he had a girlfriend at home and that she[, i.e., the girlfriend,] would give it to him.” Thus, what had initially been characterized by the prosecution as an admission by defendant actually may not have been one. In other words, the complainant's equivocal accounts of defendant's statements render it possible that defendant never admitted to engaging in any sexual encounter with the complainant, consensual or otherwise.
Following the attack, a semen stain was found on the crotch of the jumpsuit that the complainant had been wearing. There was no indication that the source of the semen could have been anyone but the attacker ( see e.g. Tankleff, 46 A.D.3d at 847, 848 N.Y.S.2d 277;People v. Keene, 4 A.D.3d 536, 536–537, 772 N.Y.S.2d 337;cf. People v. Swift, 108 A.D.3d 1060, 1061, 968 N.Y.S.2d 782,lv. denied21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151;People v. Workman, 72 A.D.3d 1640, 1640, 900 N.Y.S.2d 216,lv. denied15 N.Y.3d 925, 913 N.Y.S.2d 652, 939 N.E.2d 818,reconsideration denied16 N.Y.3d 838, 921 N.Y.S.2d 203, 946 N.E.2d 191), but no DNA testing was performed on the jumpsuit. Based on the record before us, we conclude that “the evidence of defendant's guilt was not so overwhelming that a different verdict would not have resulted if ... DNA testing excluded him” as the source of the semen on the jumpsuit ( People v. West, 41 A.D.3d 884, 885, 837 N.Y.S.2d 415;see People v. Bush, 90 A.D.3d 945, 946, 935 N.Y.S.2d 73;Keene, 4 A.D.3d at 537, 772 N.Y.S.2d 337). We therefore remit the matter to Supreme Court for a hearing to determine whether the jumpsuit is still in existence and, if so, whether there is sufficient DNA material for testing ( see Keene, 4 A.D.3d at 537, 772 N.Y.S.2d 337).
With respect to the contentions raised by defendant in his pro se supplemental brief, we conclude that they are not properly before us ( see People v. Johnson, 112 A.D.3d 969, 970, 976 N.Y.S.2d 895).
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law, and the matter is remitted to Supreme Court, Erie County, for a hearing.