People v Mixon

People v Mixon 2015 NY Slip Op 05003 Decided on June 12, 2015 Appellate Division, Fourth 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 June 12, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.
662 KA 13-01565

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

CHARLIE MIXON, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Erie County (M. William Boller, A.J.), entered May 16, 2013. The order, insofar as appealed from, denied that part of the motion of defendant seeking DNA testing pursuant to CPL 440.30 (1-a).

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from an order insofar as it denied his motion pursuant to CPL 440.30 (1-a) seeking DNA testing of items secured in connection with his 1990 conviction of one count of arson in the first degree and six counts of murder in the second degree (People v Mixon, 203 AD2d 909, lv denied 84 NY2d 830, reconsideration denied 84 NY2d 909). We conclude that Supreme Court properly denied the motion. Defendant failed to establish that if DNA tests had been conducted on certain items from the crime scene and the results had been admitted at his trial that "there exists a reasonable probability that the verdict would have been more favorable to" him (CPL 440.30 [1-a] [a] [1]; see People v Mixon, 30 AD3d 1103, 1103, lv denied 7 NY3d 903).

Entered: June 12, 2015

Frances E. Cafarell

Clerk of the Court