| People v Bush |
| 2011 NY Slip Op 09342 [90 AD3d 945] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KeithBush, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), forrespondent.
Appeal by the defendant from stated portions of an order of the County Court, SuffolkCounty (Efman, J.), dated December 16, 2009, which, inter alia, denied those branches of hismotion pursuant to CPL 440.30 (1-a) which were for the performance of forensic DNA testing onpreviously untested fingernail scrapings of the decedent and a white knit hat recovered at thescene of the crime.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion pursuant to CPL 440.30 (1-a) which was for the performance offorensic DNA testing on the previously untested fingernail scrapings of the decedent andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed insofar as appealed from.
The County Court properly denied that branch of the defendant's motion pursuant to CPL440.30 (1-a) which was for the performance of forensic DNA testing on a white knit hatrecovered at the scene of the crime. The hat was never an issue at the trial and the defendant'sclaim that testing of the hat would reveal exculpatory evidence is purely speculative (seePeople v Bailey, 291 AD2d 667, 669 [2002]; People v Schulze, 224 AD2d 729, 730[1996]). Accordingly, as the County Court properly determined, the defendant failed to show thatthere was a reasonable probability that the verdict would have been more favorable to him hadthe DNA test results on the hat been admitted into evidence at trial (see CPL 440.30[1-a]; People v Fuentes, 44 AD3d871 [2007]; People v Brown,36 AD3d 961, 961-962 [2007]; People v Bailey, 35 AD3d 491, 492 [2006]).
The County Court erred, however, in denying that branch of the defendant's motion whichwas for the performance of forensic DNA testing on previously untested fingernail scrapings ofthe decedent. Initial testing of scrapings from underneath three of the decedent's fingernails, anda black plastic comb found at the crime scene, revealed the presence of male tissue. Although thedefendant was excluded as the source of this tissue, the results did not provide a DNA profile thatwas detailed enough to conduct further testing. Testing of the previously untested fingernailscrapings could reveal a more complete genetic profile of the male contributor to the DNAsample already found in the other scrapings. In addition, such testing could reveal a geneticprofile complete enough to run through a large DNA database or that could be matched to themale contributor to the [*2]DNA on the black plastic comb.Given the sample of genetic material recovered from the fingernail scrapings already tested andthe sample of genetic material recovered from the black plastic comb found at the scene, theCounty Court should have determined that a reasonable probability existed of a more favorableverdict if further testing was conducted on the previously untested fingernail scrapings andshowed that the male contributor to these two prior samples shared a common source and did notcome from the defendant (see People vWest, 41 AD3d 884, 884-885 [2007]; see also O'Donnell v State of New York, 26 AD3d 59, 61 [2005];cf. People v Fuentes, 44 AD3d at 871; People v Bailey, 35 AD3d at 492).
The defendant's remaining contention is without merit. Dillon, J.P., Eng, Sgroi and Miller,JJ., concur.