People v Walker

People v Walker 2017 NY Slip Op 07337 Decided on October 19, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 19, 2017
Manzanet-Daniels, J.P., Mazzarelli, Moskowitz, Kahn, Kern, JJ.
4759 338/91

[*1]The People of the State of New York, Respondent,

v

Sherman Walker, Defendant-Appellant.

Rosemary Herbert,, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), for respondent.

Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about September 3, 2014, which denied defendant's CPL 440.30(1-a) motion for DNA testing, unanimously affirmed.

The record on appeal is insufficient to permit review of defendant's assertion that the People failed to disclose whether any DNA-testable biological material relating to the underlying 1991 robbery exists. In any event, even if such material exists, the court properly denied the motion because, given the facts of the case, there is no reasonable probability that DNA testing of fingerprint evidence recovered from the crime scene (which was matched to defendant's fingerprints) would have led to a verdict

more favorable to defendant (see People v Concepcion, 104 AD3d 442 [1st Dept 2013], lv denied 21 NY3d 1003 [2013]; People v Figueroa, 36 AD3d 458, 459 [1st Dept 2007], lv denied 9 NY3d 843 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 19, 2017

CLERK