138 AD3d 763
N.Y. App. Div. 2nd
2016

People v Perry

Appellate Division, Second Department

April 6, 2016

2016 NY Slip Op 02669 | 138 AD3d 763

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 1, 2016

Seymour W. James, Jr., New York, NY (Harold V. Ferguson, Jr., of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.

Appeal by the defendant pursuant to CPL 450.10 (5) from an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 11, 2013, which denied, without a hearing, his motion pursuant to CPL 440.30 (1-a) for forensic DNA testing on certain evidence recovered by the police.

Ordered that the order is affirmed.

The Supreme Court correctly determined that certain changes in the law relevant to motions pursuant to CPL 440.30 (1-a) (see CPL 440.30 [1-a] [a] [2] [eff Aug. 1, 2012]), made since the time of the defendant‘s prior unsuccessful motions pursuant to CPL 440.30 (1-a) (see People v Perry, 89 AD3d 1114 [2011]; People v Perry, 295 AD2d 452 [2002]), are inapplicable herein, as the defendant was convicted of the underlying charges after trial rather than upon a plea of guilty. The court correctly determined that, to the extent the defendant also sought relief under the applicable subdivision of CPL 440.30 (1-a) (see CPL 440.30 [1-a] [a] [1]), he was still required to demonstrate that there exists a reasonable probability that the verdict would have been more favorable to him if a DNA test had been conducted on the subject evidence, and if the results had been admitted at the subject trial, which he failed to do (see CPL 440.30 [1-a]; People v Perry, 89 AD3d at 1114-1115). Accordingly, the court properly denied, without a hearing, the defendant‘s motion pursuant to CPL 440.30 (1-a) for forensic DNA testing on the subject evidence. Rivera, J.P., Leventhal, Dickerson and Miller, JJ., concur.