Opinion
11-09-2017
The PEOPLE of the State of New York, Respondent, v. Rasheed MILTON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. John J. Flynn, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from an order that, inter alia, denied that part of his pro se motion seeking, pursuant to CPL 440.30(1–a), DNA testing of a bra and shirt worn by the victim of defendant's sexual assault. Those clothing items were admitted in evidence at defendant's trial, which resulted in his conviction of, inter alia, two counts of predatory sexual assault ( Penal Law § 130.95[1][b] ; [3] ). This Court previously affirmed the judgment of conviction ( People v. Milton, 90 A.D.3d 1636, 934 N.Y.S.2d 921 [4th Dept.2011], lv. denied 18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007 [2012] ). Inasmuch as DNA obtained from the victim's rape kit vaginal swab was tested and showed that defendant was the contributor, at trial defendant did not dispute that he had sexual intercourse with the victim. The defense theory, instead, was that the sexual encounter was consensual. We conclude that Supreme Court properly denied defendant's request for additional DNA testing without a hearing inasmuch as " ‘defendant failed to establish that there was a reasonable probability that, had [the bra and shirt] 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 People v. Letizia, 141 A.D.3d 1129, 1130, 35 N.Y.S.3d 816 [4th Dept.2016], lv. denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016], reconsideration denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ). We further conclude that, contrary to defendant's contention, the court's decision read in totality shows that it applied the proper standard in denying defendant's request (see CPL 440.30[1–a][a][1] ; cf. People v. Vanalst, 103 A.D.3d 1227, 1227–1228, 959 N.Y.S.2d 356 [4th Dept.2013] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.