People v. Mixon

Jun 9, 2006
Versions:30 A.D.3d 1103
815 N.Y.S.2d 868

Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.), entered March 21, 2005. The order denied defendant‘s motion pursuant to CPL 440.30 (1-a).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Supreme Court properly denied the motion of defendant pursuant to CPL 440.30 (1-a) for DNA testing of evidence secured in connection with his 1990 conviction of arson in the first degree and six counts of murder in the second degree. We previously affirmed the judgment of conviction with respect to those crimes (People v Mixon, 203 AD2d 909 [1994], lv denied 84 NY2d 830, 909 [1994]). Defendant “failed to allege any facts demonstrating that, ‘if [DNA] 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 him” (People v Burr, 17 AD3d 1131, 1132 [2005], lv denied 5 NY3d 760, 804 [2005], quoting CPL 440.30 [1-a] [a]; see People v Pitts, 4 NY3d 303, 311 [2005], rearg denied 5 NY3d 783 [2005]; People v Mattocks, 15 AD3d 676 [2005], lv denied 5 NY3d 765 [2005]; People v Dearstyne, 305 AD2d 850, 853 [2003], lv denied 100 NY2d 593 [2003]). Present—Pigott, Jr., PJ., Hurlbutt, Scudder, Kehoe and Smith, JJ.