Opinion
08-25-2016
The PEOPLE of the State of New York, Respondent, v. Ivan RAMOS, Appellant.
Barry J. Jones, Hudson Falls, for appellant. James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), for respondent.
Barry J. Jones, Hudson Falls, for appellant.
James E. Conboy, District Attorney, Fonda (Kelli P. McCoski of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., DEVINE, MULVEY and AARONS, JJ.
Opinion
DEVINE, J. Appeal from an order of the County Court of Montgomery County (Catena, J.), entered September 3, 2014, which denied defendant's motion pursuant to CPL 440.30(1–a).
Defendant was convicted following a jury trial of two counts of murder in the first degree and criminal possession of a weapon in the third degree in connection with the fatal stabbing of a man and a woman inside a Montgomery County apartment (133 A.D.3d 904, 20 N.Y.S.3d 183 [2015], lvs. denied 26 N.Y.3d 1143, 1149, 32 N.Y.S.3d 57, 63, 26 N.E.3d 568, 574, [2016] ). He was sentenced as a second felony offender to an aggregate term of life in prison without the possibility of parole ( id. at 905, 20 N.Y.S.3d 183 ) and his conviction was later affirmed by this Court (id. at 909, 20 N.Y.S.3d 183 ). While his appeal was pending, defendant made a pro se motion pursuant to CPL 440.30(1–a) to obtain expert testimony concerning the DNA, footprint and fingerprint evidence that had been presented to the jury at trial or, alternatively, for an evidentiary hearing. In support of his motion, he maintained that his trial counsel was ineffective in failing to retain an expert to contest such evidence and to further develop the record in this regard. The People opposed the motion and County Court denied it without hearing. Defendant now appeals.
CPL 440.30(1–a)(a)(1) provides that a defendant may bring a postconviction motion requesting forensic DNA testing of “specified evidence.” The statute further provides that “the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30[1–a] [a] [1] ). As the Court of Appeals has recognized, CPL 440.30(1–a) was enacted to establish a new procedure for defendants to secure DNA testing of specified evidence (see People v. Pitts, 4 N.Y.3d 303, 309–310, 795 N.Y.S.2d 151, 828 N.E.2d 67 [2005] ).
Defendant here has not requested DNA testing of any evidence, and instead seeks to have expert testimony adduced for the purpose of challenging the accuracy of scientific evidence that was actually presented at trial. Inasmuch as CPL 440.30(1–a) does not address requests for expert testimony, the provision is inapplicable to defendant's request. Even if the statute applied to the situation presented, defendant's pro se motion contains only general and conclusory assertions regarding the sufficiency of the scientific evidence presented, the possibility that expert testimony would have aided his defense and the overall effectiveness of trial counsel. Thus, defendant has not established that “there exists a reasonable probability that the verdict would have been more favorable to” him if he were permitted to present the requested expert testimony, and his motion was properly denied without a hearing (CPL 440.30[1–a][a][1] ; see People v. Dickson, 103 A.D.3d 989, 990, 962 N.Y.S.2d 380 [2013], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ; see also People v. Card, 115 A.D.3d 1007, 1009, 981 N.Y.S.2d 827 [2014], lv. denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ).
ORDERED that the order is affirmed.
GARRY, J.P., EGAN JR., MULVEY and AARONS, JJ., concur.