People v Witherspoon

People v Witherspoon 2017 NY Slip Op 08863 Decided on December 20, 2017 Appellate Division, Second 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 December 20, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
CHERYL E. CHAMBERS
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2015-05985
(Ind. No. 1111-08)

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

v

Eric G. Witherspoon, appellant.

Salvatore C. Adamo, New York, NY, for appellant.

Emily Constant, Acting District Attorney, Riverhead, NY (Glenn Green of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant pursuant to CPL 450.10(5) from so much of an order of the County Court, Suffolk County (Braslow, J.), dated June 9, 2015, as denied, without a hearing, that branch of his motion which was pursuant to CPL 440.30(1-a) for forensic DNA testing of certain evidence recovered by the police.

ORDERED that the order is affirmed insofar as appealed from.

The defendant challenges the denial of that branch of his motion which was pursuant to CPL 440.30(1-a) for forensic DNA testing of certain evidence recovered by the police. However, trial evidence established that forensic DNA testing was performed on the evidence in question. Since CPL 440.30(1-a) does not provide for retesting of DNA material, the County Court properly denied, without a hearing, that branch of the defendant's motion which was pursuant to CPL 440.30(1-a) for forensic DNA testing of certain evidence recovered by the police (see People v Reed, 129 AD3d 1508, 1508-1509; People v Holman, 63 AD3d 1088, 1088; People v Jones, 307 AD2d 721, 722).

LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court