| People v Simmons |
| 2009 NY Slip Op 04550 [63 AD3d 1605] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Otis L.Simmons, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from an order of the Onondaga County Court (William D. Walsh, J.), entered July10, 2008. The order denied the motion of defendant pursuant to CPL 440.30 (1-a) for DNAtesting.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: County Court properly denied defendant's postjudgment motion pursuant toCPL 440.30 (1-a) for DNA testing. We note that defendant has abandoned any request for DNAtesting on blood found in the basement where the alleged rape occurred inasmuch as hiscontention in his brief on appeal is limited to DNA testing of pubic hair (see generally Peoplev Jansen, 145 AD2d 870, 871 [1988], lv denied 73 NY2d 923 [1989]). We concludethat, even if the mitochondrial DNA testing sought by defendant had been performed on thepubic hair, there is no reasonable probability that the verdict would have been more favorable todefendant (see generally People vPitts, 4 NY3d 303, 310 [2005], rearg denied 5 NY3d 783 [2005]).Present—Hurlbutt, J.P., Martoche, Fahey, Carni and Pine, JJ.