Opinion
97 KA 10-00076.
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Daniel JONES, Defendant–Appellant.
Kevin J. Bauer, Albany, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.
Kevin J. Bauer, Albany, for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.
Opinion
MEMORANDUM:Defendant appeals from that part of an order denying his pro se motion pursuant to CPL 440.10 and 440.30(1–a) seeking DNA testing on a rape kit, underwear, an “excised piece of cloth taken from the victim's underwear,” swabs, slides, “hair, clothing or shaking[s] from the victim's clothing,” and a washcloth (see generally CPL 450.10[5] ). We previously held this case, reserved decision, and remitted the matter to Supreme Court to rule on that part of defendant's motion seeking DNA testing of those items other than the washcloth (People v. Jones, 114 A.D.3d 1272, 980 N.Y.S.2d 862 ). Upon remittal, the court denied the motion in its entirety, and we now affirm.
We conclude that the court properly denied defendant's motion without a hearing because CPL 440.30(1–a) “does not provide for retesting of DNA material” (People v. Holman, 63 A.D.3d 1088, 1088, 880 N.Y.S.2d 559, lv. denied 13 N.Y.3d 860, 891 N.Y.S.2d 694, 920 N.E.2d 99 ; see People v. Jones, 307 A.D.2d 721, 722, 761 N.Y.S.2d 928, lv. denied 1 N.Y.3d 574, 775 N.Y.S.2d 791, 807 N.E.2d 904, reconsideration denied 1 N.Y.3d 629, 777 N.Y.S.2d 28, 808 N.E.2d 1287 ). It is uncontested that the evidence defendant seeks to have tested was already subjected to DNA testing prior to trial.
We have reviewed defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ., concur.