People v Hurdle

People v Hurdle 2008 NY Slip Op 08971 [56 AD3d 317] November 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
v
Edward Hurdle, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Frank Glaser of counsel), for respondent.

Order, Supreme Court, New York County (Robert H. Straus, J.), entered on or about January 12, 2007, which denied defendant's CPL 440.30 (1-a) motion for DNA testing, unanimously affirmed.

Even construing defendant's "reply" affidavit to be a supplementary motion for an order directing the People to locate additional evidence containing DNA, and, if located, to perform forensic DNA testing on that evidence, that motion was without merit. If DNA was present at all the possible crime scene locations posited by defendant, and if testing revealed that the DNA was that of the codefendant but not that of defendant, these results would not have created a reasonable probability of a different verdict (see People v Pitts, 4 NY3d 303, 311 [2005]), because they would still be consistent with the trial evidence and the People's trial theory as to the roles played by each perpetrator. Concur—Saxe, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.