| People v Jones |
| 2014 NY Slip Op 01064 [114 AD3d 1272] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Daniel Jones, Appellant. |
—[*1]
Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.),entered October 26, 2009. The order denied defendant's motion, pursuant to CPL 440.30(1-a), for the performance of forensic DNA testing on specified evidence.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Erie County, for a determination in accordance with thefollowing.
Memorandum: Defendant appeals from an order denying his pro se motion pursuantto CPL 440.10 and 440.30 (1-a) seeking DNA testing on a rape kit, underwear, an"excised piece of cloth taken from the victim's underwear," swabs, slides, "hair, clothingor shaking from the victim's clothing," and a washcloth (see generally CPL450.10 [5]). Preliminarily, we note that the notice of appeal incorrectly recites thatdefendant appeals from a judgment. As a matter of discretion in the interest of justice,however, we treat the notice of appeal as valid (see CPL 460.10 [6]; People v Mitchell, 93 AD3d1173, 1173 [2012], lv denied 19 NY3d 999 [2012]). The order addressedonly that part of defendant's motion requesting testing on the washcloth, however, andSupreme Court's failure to rule on the other parts of defendant's motion " 'cannot bedeemed a denial thereof' " (People v Stewart, 111 AD3d 1395, 1396 [2013]; see People v Santana, 101AD3d 1664, 1664 [2012], lv denied 20 NY3d 1103 [2013]; see generally People vConcepcion, 17 NY3d 192, 197-198 [2011]). We therefore hold the case,reserve decision and remit the matter to Supreme Court for a determination on theremainder of defendant's motion. Present—Smith, J.P., Fahey, Carni, Valentinoand Whalen, JJ.