Opinion
No. KA 06-01747.
November 14, 2008.
Appeal from an order of the Wayne County Court (John B. Nesbitt, J.), entered June 2, 2006. The order, insofar as appealed from, denied that part of the motion of defendant pursuant to CPL 440.30 (1-a) for postconviction DNA testing of certain evidence.
WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF COUNSEL), FOR RESPONDENT.
Before: Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Contrary to the contention of defendant, we conclude that County Court properly denied that part of his motion pursuant to CPL 440.30 (1-a) for DNA testing of evidence secured in connection with his conviction of manslaughter in the first degree (Penal Law § 125.20). We previously affirmed the judgment convicting him of that crime ( People v Horning, 284 AD2d 916, lv denied 97 NY2d 705). "Defendant failed to allege any facts demonstrating that, `if [DNA] 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 him" ( People v Burr, 17 AD3d 1131, 1132, lv denied 5 NY3d 760, 804, quoting CPL 440.30 [1-a] [a]).