Opinion
2012-02-9
The PEOPLE of the State of New York, Respondent, v. Harold J. HUMPHREY Jr., Appellant.
Eugene P. Grimmick, Troy, for appellant, and appellant pro se. Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.
Eugene P. Grimmick, Troy, for appellant, and appellant pro se. Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), for respondent.
Appeal from an order of the County Court of Rensselaer County (Czajka, J.), entered October 6, 2009, which, among other things, denied defendant's motion pursuant to CPL 440.30(1–a) for the performance of forensic DNA testing on specified evidence.
Defendant was convicted of three counts of rape in the second degree and his conviction was upheld on appeal (30 A.D.3d 766, 816 N.Y.S.2d 393 [2006], lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804 [2006] ). He subsequently moved pursuant to CPL 440.30(1–a) seeking to have DNA evidence collected from the victim produced for comparison with his own DNA. As part of the motion, he also sought to have his conviction vacated based upon the alleged denial of his constitutional right to confront witnesses. County Court denied the motion and defendant appeals.
Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record, counsel's brief and defendant's pro se submission, we agree ( see People v. Pugh, 288 A.D.2d 634, 732 N.Y.S.2d 673 [2001] ). Therefore, the judgment is affirmed and counsel's request for leave to withdraw is granted ( see People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153 [2001]; People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985], lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ).
ORDERED that the order is affirmed, and application to be relieved of assignment granted.