| People v Hurdle |
| 2008 NY Slip Op 08971 [56 AD3d 317] |
| November 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edward Hurdle, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Frank Glaser of counsel), forrespondent.
Order, Supreme Court, New York County (Robert H. Straus, J.), entered on or about January12, 2007, which denied defendant's CPL 440.30 (1-a) motion for DNA testing, unanimouslyaffirmed.
Even construing defendant's "reply" affidavit to be a supplementary motion for an orderdirecting the People to locate additional evidence containing DNA, and, if located, to performforensic DNA testing on that evidence, that motion was without merit. If DNA was present at allthe possible crime scene locations posited by defendant, and if testing revealed that the DNA wasthat of the codefendant but not that of defendant, these results would not have created areasonable probability of a different verdict (see People v Pitts, 4 NY3d 303, 311 [2005]), because they wouldstill be consistent with the trial evidence and the People's trial theory as to the roles played byeach perpetrator. Concur—Saxe, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.