Opinion
June 15, 1995
Appeal from the Supreme Court, Bronx County (Gerald Sheindlin, J.).
The court did not commit error in denying defendant a hearing on whether the People were negligent in collecting or preserving vaginal swabs in which sperm was found for DNA testing, and in prohibiting cross-examination of the People's experts with respect to DNA testing, since identity was not an issue, defendant having testified to consensual sexual contact not involving intercourse, and the complainant did not testify that defendant had ejaculated but had achieved penetration just before the arrival of the police. DNA testing was therefore irrelevant to any issue in the case.
The sentence was not excessive in light of defendant's prior conviction for attempted murder and manslaughter, and his lack of remorse for the instant crime. Defendant's application to set aside the $150 mandatory surcharge was premature ( People v Wilkes, 162 A.D.2d 303, lv denied 76 N.Y.2d 897).
Concur — Rosenberger, J.P., Wallach, Rubin and Mazzarelli, JJ.