| People v Swift |
| 2009 NY Slip Op 07009 [66 AD3d 1439] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Sammy L.Swift, Respondent. |
—[*1] Sammy L. Swift, defendant-respondent pro se. David P. Elkovitch, Auburn, for defendant-respondent.
Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered August18, 2008. The order granted the motion of defendant pursuant to CPL 440.10 (1) (g) to vacate thejudgment convicting him of murder in the second degree and robbery in the first degree.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotion is denied and the judgment of conviction is reinstated.
Memorandum: On a prior appeal, we affirmed a judgment convicting defendant upon a juryverdict of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the firstdegree (§ 160.15 [1]; People v Swift, 241 AD2d 949 [1997], lv denied 91NY2d 881, 1013 [1997]). The People appeal from an order granting defendant's motion to vacatethe judgment of conviction on the ground of newly discovered evidence (see CPL 440.10[1] [g]), i.e., post-trial DNA test results indicating that the blood found at the crime scene wasexclusively that of the victim. We agree with the People that the DNA test results are not "ofsuch character as to create a probability that had such evidence been received at the trial theverdict would have been more favorable to the defendant" (CPL 440.10 [1] [g]). At the trial, thePeople presented evidence that blood at the crime scene was consistent with both the victim'sblood type and defendant's blood type. Although the People relied upon that evidence tocorroborate the testimony of defendant's accomplices (see Swift, 241 AD2d 949 [1997]),we conclude that the remaining nonaccomplice evidence tends to connect defendant to therobbery and murder and is sufficient "to assure that the accomplices have offered credibleprobative evidence" (People v Breland, 83 NY2d 286, 293 [1994]). The contention ofdefendant in his pro se supplemental brief that the sister of the accomplices was herself anaccomplice whose testimony required corroboration was not raised in the motion and thus is notproperly before us (see generally People v Goodell, 221 AD2d 1009 [1995], lvdenied 88 NY2d 848 [1996]). We have considered the remaining contentions of defendant inhis pro se supplemental brief and conclude that they are lacking in merit.Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Pine, JJ.