| People v Workman |
| 2010 NY Slip Op 03707 [72 AD3d 1640] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesWorkman, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredJuly 29, 2008. The order denied the motion of defendant pursuant to CPL 440.30 (1-a) for DNAtesting of certain evidence.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Supreme Court properly denied the postjudgment motion of defendantpursuant to CPL 440.30 (1-a) seeking DNA testing of hair and retesting of other evidencesecured in connection with his 1996 conviction of murder in the second degree (Penal Law§ 125.25 [1]) and criminal possession of a weapon in the fourth degree (§ 265.01[2]). We previously affirmed the judgment convicting defendant of those crimes (People vWorkman, 256 AD2d 1218 [1998], lv denied 93 NY2d 931 [1999]). Although hairfound in the hotel room where the murder occurred and on the murder weapon did not belong toeither defendant or the victim, the jury was aware of that fact at the time of trial. The evidence attrial also established that the unidentified hair could have been in the hotel room for a longperiod of time and could have been transferred onto the murder weapon when it was placed onthe floor. Thus, defendant failed to establish that " 'if [DNA] results [concerning the hair] hadbeen admitted in the trial resulting in the judgment, there exists a reasonable probability that theverdict would have been more favorable' to him" (People v Burr, 17 AD3d 1131, 1132 [2005], lv denied 5NY3d 760 [2005], lv denied upon reconsideration 5 NY3d 804 [2005], quoting CPL440.30 [1-a] [a]; see People v Pitts,4 NY3d 303, 311 [2005], rearg denied 5 NY3d 783 [2005]). Further, prior DNAtesting established the presence of defendant's semen on the hotel bed sheets and the victim'sblood on the murder weapon, and those test results were admitted in evidence at trial. Althoughdefendant sought to have that evidence retested using newer DNA testing procedures, he failedto establish that any DNA evidence from that retesting would have exonerated him (see People v Brown, 36 AD3d961 [2007], lv denied 8 NY3d 920 [2007]). Present—Smith, J.P., Carni,Lindley, Sconiers and Pine, JJ.