Opinion
921 KA 14–01649
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Robert C. LEWIS, Defendant–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Steuben County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order insofar as it failed to grant that part of his pro se motion seeking DNA testing of a rape kit and the victim's shirt and pants. The order addressed defendant's motion to the extent it sought to vacate the judgment of conviction pursuant to CPL 440.10, but did not address the motion to the extent it sought DNA testing pursuant to CPL 440.30(1–a). Inasmuch as County Court's failure to rule on that part of defendant's motion "cannot be deemed a denial thereof" ( People v. Jones , 114 A.D.3d 1272, 1272, 980 N.Y.S.2d 862 [4th Dept. 2014] [internal quotation marks omitted]; see People v. Stewart , 111 A.D.3d 1395, 1396, 974 N.Y.S.2d 858 [4th Dept. 2013] ; see also People v. Santana , 101 A.D.3d 1664, 1664, 956 N.Y.S.2d 751 [4th Dept. 2012], lv denied 20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013] ; see generally People v. Concepcion , 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ), we hold the case, reserve decision, and remit the matter to County Court for a determination whether " ‘there was a reasonable probability that, had th[e rape kit, shirt and pants] been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant’ " ( People v. Swift , 108 A.D.3d 1060, 1061, 968 N.Y.S.2d 782 [4th Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ; see CPL 440.30[1–a][a][1] ; People v. Pitts , 4 N.Y.3d 303, 310, 795 N.Y.S.2d 151, 828 N.E.2d 67 [2005], rearg. denied 5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663 [2005] ; People v. Milton , 155 A.D.3d 1583, 1584, 64 N.Y.S.3d 440 [4th Dept. 2017], lv denied 30 N.Y.3d 1117, 77 N.Y.S.3d 342, 101 N.E.3d 983 [2018], reconsideration denied 31 N.Y.3d 1085, 79 N.Y.S.3d 106, 103 N.E.3d 1253 [2018] ; People v. Burr , 17 A.D.3d 1131, 1132, 795 N.Y.S.2d 806 [4th Dept. 2005], lv denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264 [2005], reconsideration denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 [2005] ).