| People v Bolling |
| 2009 NY Slip Op 06442 [65 AD3d 1054] |
| September 8, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Victor Bolling, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant pursuant to CPL 450.10 (5) from an order of the Supreme Court,Queens County (Hanophy, J.), dated April 16, 2007, which denied his motion pursuant to CPL440.30 (1-a) for DNA testing.
Ordered that the order is affirmed.
The defendant's motion pursuant to CPL 440.30 (1-a) for DNA testing of blood found on apole on a public street was properly denied on the ground that there was no "reasonableprobability" that the test results would have resulted in a "more favorable verdict. . . had the results . . . been introduced at trial" (People v Pitts, 4 NY3d 303, 311[2005]; see People v Mattocks, 15AD3d 676 [2005]). Since the pole was in a public place, the blood could have come fromother persons, not involved in the crime (see People v Brown, 36 AD3d 961 [2007]).
Further, this issue was previously raised in the United States District Court for the EasternDistrict of New York, which found that the defendant's claim with respect to the "exculpatorypotential of the evidence is purely speculative" (Bolling v Stinson, 1999 WL 287733, *7,1999 US Dist LEXIS 6620, *21 [ED NY 1999]). Although that finding is not binding on thisCourt, it does constitute persuasive authority (see People v Kin Kan, 78 NY2d 54[1991]). Spolzino, J.P., Angiolillo, Chambers and Lott, JJ., concur.