| People v Sterling |
| 2007 NYSlipOp 00910 |
| February 2, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank Sterling, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), for plaintiff-respondent.
Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), dated December 14, 2004. The order, insofar as appealed from, denied in part defendant's motion for postconviction DNA testing of certain items 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 in part his motion pursuant to CPL 440.30 (1-a) for DNA testing of certain items of evidence (People v Sterling, 6 Misc 3d 712 [2004]). We conclude that County Court properly denied that part of the motion seeking testing with respect to those items because defendant failed to establish that there was a reasonable probability that, had those items been tested and had the results been admitted at trial, the verdict would have been more favorable to defendant (see CPL 440.30 [1-a]).
We note that, in reaching our determination, we have declined to consider any evidence of events that took place after the issuance of the order on appeal. Present—Hurlbutt, A.P.J., Martoche, Centra and Pine, JJ.