| People v Flax |
| 2014 NY Slip Op 03416 [117 AD3d 1582] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNewnon Flax, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Newnon Flax, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (Penny M. Wolfgang, J.),entered May 3, 2012. The order, insofar as appealed from, denied that part of the motionof defendant pursuant to CPL 440.30 (1-a) for DNA testing.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law, and the matter is remitted to Supreme Court, Erie County, for a hearing inaccordance with the following memorandum: Defendant appeals from that part of anorder denying his postjudgment motion pursuant to CPL 440.30 (1-a) for DNA testing ofa certain item of evidence secured in connection with his conviction of, inter alia, rape inthe first degree (Penal Law § 130.35 [1]). This Court previously modifiedthe judgment of conviction by vacating the sentence (People v Flax, 155 AD2d894 [1989], lv denied 76 NY2d 734 [1990]) and, on the appeal from thejudgment after resentencing, we affirmed (People v Flax, 178 AD2d 1026[1991]). Preliminarily, we note that the notice of appeal herein incorrectly states thatdefendant is appealing from the judgment, rather than the order denying thepostjudgment motion. As a matter of discretion in the interest of justice, however, wetreat the notice of appeal as valid (see CPL 460.10 [6]; People v Jones, 114 AD3d1272, 1272 [2014]). Inasmuch as defendant's previous CPL 440.30 (1-a) motion wasdenied, CPL 440.10 (3) (b), made applicable to this motion pursuant to 440.30 (2),permits but does not require denial of the motion. Under the circumstances of this case,we conclude that Supreme Court erred in denying the instant CPL 440.30 (1-a) motion(see People v Tankleff, 46AD3d 846, 847 [2007]; see also People v Hayes, 284 AD2d 1008, 1009[2001], lv denied 97 NY2d 641 [2001]).
The identification evidence at trial consisted of testimony from the complainant that,although she could not see her attacker, she recognized the voice as defendant's from thethree words the attacker spoke when he grabbed her. The complainant also stated that sheobserved the profile of her attacker in the dark of night from three houses away as he wasrunning from the scene. At trial, the complainant testified that, during a subsequentencounter, defendant made a statement indicating that the complainant "gave it to him."The complainant also testified, however, that defendant, during that same subsequentencounter, denied ever touching her. In a posttrial statement to a probation officer, thecomplainant stated that, during that subsequent [*2]encounter, defendant had told the complainant that "he hada girlfriend at home and that she[, i.e., the girlfriend,] would give it to him." Thus, whathad initially been characterized by the prosecution as an admission by defendant actuallymay not have been one. In other words, the complainant's equivocal accounts ofdefendant's statements render it possible that defendant never admitted to engaging inany sexual encounter with the complainant, consensual or otherwise.
Following the attack, a semen stain was found on the crotch of the jumpsuit that thecomplainant had been wearing. There was no indication that the source of the semencould have been anyone but the attacker (see e.g. Tankleff, 46 AD3d at 847; People v Keene, 4 AD3d536, 536-537 [2004]; cf.People v Swift, 108 AD3d 1060, 1061 [2013], lv denied 21 NY3d 1077[2013]; People v Workman,72 AD3d 1640, 1640 [2010], lv denied 15 NY3d 925 [2010], lv deniedupon reconsideration 16 NY3d 838 [2010]), but no DNA testing was performed onthe jumpsuit. Based on the record before us, we conclude that "the evidence ofdefendant's guilt was not so overwhelming that a different verdict would not haveresulted if . . . DNA testing excluded him" as the source of the semen on thejumpsuit (People v West, 41AD3d 884, 885 [2007]; seePeople v Bush, 90 AD3d 945, 946 [2011]; Keene, 4 AD3d at 537). Wetherefore remit the matter to Supreme Court for a hearing to determine whether thejumpsuit is still in existence and, if so, whether there is sufficient DNA material fortesting (see Keene, 4 AD3d at 537).
With respect to the contentions raised by defendant in his pro se supplemental brief,we conclude that they are not properly before us (see People v Johnson, 112 AD3d 969, 970 [2013]).Present—Scudder, P.J., Fahey, Lindley, Valentino and Whalen, JJ.