| People v Perry |
| 2011 NY Slip Op 08785 [89 AD3d 1114] |
| November 29, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RobertPerry, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel;David Blondell on the brief), for respondent.
Appeal by the defendant pursuant to CPL 450.10 (5) from an order of the Supreme Court,Richmond County (Rienzi, J.), dated February 4, 2010, which denied, without a hearing, his motionpursuant to CPL 440.30 (1-a) for forensic DNA testing of certain evidence recovered by the police.
Ordered that the order is affirmed.
Contrary to the defendant's contention, the Supreme Court correctly determined that, despitecertain changes in the law relevant to motions pursuant to CPL 440.30 (1-a) (see CPL 440.30[1-a] [b]; People v Pitts, 4 NY3d303, 311 [2005]) since the time of the defendant's prior unsuccessful motion pursuant thereto(see People v Perry, 295 AD2d 452 [2002]), the defendant was still required to demonstratethat there exists a reasonable probability that the verdict would have been more favorable to him if aDNA test had been conducted on the evidence at issue, and if the results had been admitted at thesubject trial (see CPL 440.30 [1-a]). The defendant failed to make such a showing. Undersuch circumstances, the Supreme Court properly denied, without a hearing, the defendant's motionpursuant to CPL 440.30 (1-a) for forensic DNA testing of certain evidence recovered by the police(see People v Pitts, 4 NY3d at 311; People v Bolling, 65 AD3d 1054, 1054 [2009]; see also e.g. People v Hai Guang Zheng, 69AD3d 878, 879 [2010]; cf. People vBarnwell, 6 AD3d 1147 [2004], revd 4 NY3d 303 [2005]). Dillon, J.P., Balkin,Leventhal and Belen, JJ., concur.