| People v Swift |
| 2013 NY Slip Op 05125 [108 AD3d 1060] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vSammy Swift, Appellant. |
—[*1] Sammy Swift, defendant-appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent. Rita Dave, Brooklyn, for the Jeffrey Deskovic Foundation for Justice, amicuscuriae.
Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), enteredOctober 28, 2010. The order, insofar as appealed from, denied the motion of defendantfor additional DNA testing pursuant to CPL 440.30 (1-a).
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order that, inter alia, denied his pro semotion pursuant to CPL 440.30 (1-a) for additional DNA testing of certain items securedin connection with his conviction of murder in the second degree (Penal Law §125.25 [3]) and robbery in the first degree (§ 160.15 [1]). Defendant's convictionarose from the robbery and fatal beating of a 68-year-old victim in his home by defendantand two accomplices (People v Swift, 241 AD2d 949, 949 [1997], lvdenied 91 NY2d 881 [1997], lv denied on reconsideration 91 NY2d 1013[1998]). On appeal, we affirmed the judgment convicting defendant of those crimes(id.). At trial, one of defendant's accomplices testified that, after the attack,defendant wiped blood off of his arm onto a couch cushion. A forensic scientist testifiedthat two bloodstains on the couch cushions contained samples of the victim's blood type(type A) as well as a mixture of type A and type O, defendant's blood type (id. at949).
In 2007, defendant moved to vacate the judgment of conviction pursuant to CPL440.10 and sought DNA testing of all of the evidence collected in the murderinvestigation (People vSwift, 66 AD3d 1439 [2009], lv denied 13 NY3d 911 [2009],reconsideration denied 14 NY3d 845 [2010]). Because of advancements in DNAtesting, the People consented to the testing of certain items of evidence, including theblood-stained couch cushions and the victim's pants. The DNA test results indicated thatthe blood found at the crime scene was exclusively that of the victim (id. at1440). County Court vacated defendant's judgment of conviction on that ground and wereversed, concluding that "the DNA test results are not 'of such character as to create aprobability that had [*2]such evidence been received atthe trial the verdict would have been more favorable to the defendant' " (id. at1440, quoting CPL 440.10 [1] [g]).
Defendant thereafter filed the motion at issue here seeking, inter alia, DNA testing ofadditional items of evidence, i.e., the victim's dentures, the victim's shirt, an afghanblanket, hypodermic needles, hair samples from the victim and defendant, and bloodyfootprints from the crime scene. We conclude that the court properly denied that part ofthe motion seeking testing with respect to those items "because defendant failed toestablish that there was a reasonable probability that, had those items been tested and hadthe results been admitted at trial, the verdict would have been more favorable todefendant" (People vSterling, 37 AD3d 1158, 1158 [2007]; see People v Kaminski, 61 AD3d 1113, 1116 [2009], lvdenied 12 NY3d 917 [2009]; see also People v Burr, 17 AD3d 1131, 1132 [2005], lvdenied 5 NY3d 760 [2005], lv denied upon reconsideration 5 NY3d 804[2005]). The two hypodermic needles collected from the crime scene were left byparamedics who treated the victim when he was found several days after the attack and,are therefore unrelated to the crime. With respect to the victim's dentures, there is noevidence that the victim bit his attacker or that the victim's dentures would otherwisecontain the DNA of the attacker. As for the alleged "bloody footprints," there is noreference to crime scene footprints in the trial record or in the record before us. There issimilarly no reference in the record to hair samples being taken from the victim ordefendant, or to hair being collected from the crime scene. In any event, any hairscollected from the crime scene could have belonged to defendant, his accomplices, thevictim, the victim's son who discovered his father after the attack, the paramedics orpolice who responded to the scene, or any number of other individuals who had been inthe victim's apartment before the attack (see People v Brown, 36 AD3d 961, 962 [2007], lvdenied 8 NY3d 920 [2007]; see also People v Workman, 72 AD3d 1640, 1640 [2010],lv denied 15 NY3d 925 [2010], lv denied upon reconsideration 16 NY3d838 [2010]). With respect to the victim's shirt and the afghan blanket in which heapparently wrapped himself after the attack, we conclude that, although such items and,indeed, much of the crime scene were stained with blood, there is nothing to suggest thatthe blood belonged to anyone but the victim (see People v Figueroa, 36 AD3d 458, 459 [2007], lvdenied 9 NY3d 843 [2007]).
Even assuming, arguendo, that the requested items were subjected to DNA testingand that such testing revealed DNA that did not belong to either the victim or defendant,we further conclude that there still would be no reasonable probability that defendantwould have received a more favorable verdict had those test results been introduced attrial (see generally People vPitts, 4 NY3d 303, 311 [2005], rearg denied 5 NY3d 783 [2005]; People v King, 38 AD3d1066, 1067 [2007], lv denied 9 NY3d 877 [2007]; Brown, 36 AD3dat 962). The primary evidence against defendant was the eyewitness testimony of his twoaccomplices, which was corroborated by the testimony of the accomplices' sister andevidence that the victim's wallet was recovered on the route leading from defendant'sresidence to his place of employment. That testimony would not have been impeached orcontroverted by evidence that the DNA of another individual was discovered at thevictim's apartment (see Brown, 36 AD3d at 962). Present—Scudder, P.J.,Peradotto, Lindley, Sconiers and Whalen, JJ.