| People v Burr |
| 2005 NYSlipOp 03501 |
| April 29, 2005 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Burr, Appellant. |
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Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), entered October 12, 2001. The order denied defendant's motion pursuant to CPL 440.30 (1-a) for an order directing DNA testing of evidence.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his motion for an order "directing that the Law Enforcement Agency[ ] turn over all the evidence gathered in the State's case to the Federal Bureau of Investigation for the purpose of DNA testing." We reject the contention of defendant that County Court should have deemed his motion as one to vacate the judgment of conviction pursuant to CPL 440.10 and 440.30 (1-a). Defendant explicitly and repeatedly disavowed any reliance on those statutes, and the court thus decided the motion independent of their provisions. In any event, we would nevertheless conclude that the motion was properly denied even if deemed a motion brought pursuant to those statutes. Defendant failed to allege any facts demonstrating that, "if [DNA] results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable" to him (CPL 440.30 [1-a] [a]; see People v Mattocks, 15 AD3d 676 [2005]; People v Jones, 307 AD2d 721, 722 [2003], lv denied 1 NY3d 574, 629 [2003]). Present—Green, J.P., Hurlbutt, Martoche, Lawton and Hayes, JJ.