| People v Alsaifullah |
| 2015 NY Slip Op 06271 [130 AD3d 1321] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTalib F. Alsaifullah, Also Known as Victor Dennis Goree, Also Known as SalaamGoree, Appellant. |
Henry C. Meier, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Garry, J.P. Appeal from an order of the Supreme Court (Breslin, J.), entered June 27,2013 in Albany County, which, among other things, denied defendant's motion pursuantto CPL 440.30 (1-a) for the performance of forensic DNA testing on specifiedevidence.
In 1986, defendant was charged by indictment with one count of rape in the firstdegree alleging that he had sexual intercourse with a child under age 11. Defendantpleaded guilty to attempted rape in the first degree and was sentenced to 5 to 15 years inprison. Thereafter, this Court affirmed his conviction on appeal (136 AD2d 774 [1988],lv denied 71 NY2d 892 [1988]). From 2001 to 2012, defendant made threeseparate motions pursuant to CPL article 440 seeking to vacate the judgment ofconviction, and each was denied. In this fourth such application, defendant seeksappointment of counsel and DNA testing of certain evidence pursuant to CPL 440.30(1-a). Supreme Court denied the motion. Defendant appeals.
A criminal defendant does not have an unqualified right to the appointment ofcounsel in collateral proceedings (see County Law § 722 [4];Pennsylvania v Finley, 481 US 551, 555 [1987]; People ex rel. Williams v LaVallee, 19 NY2d 238, 241 [1967]). Here, no hearing was required, and defendanthad previously sought DNA testing of the same evidence on two of his [*2]prior applications. We find no abuse of discretion inSupreme Court's denial of his request for appointed counsel (see People ex rel.Williams v La Vallee, 19 NY2d at 241; People ex rel. Sanchez v Hoke, 132AD2d 861, 862 [1987]; People v Richardson, 159 Misc 2d 167, 172 [Sup Ct,Kings County 1993]). As it does not appear that defendant provided notice to the CountyAttorney, as required, we further find no error in the court's denial of defendant's requestfor poor person status (see CPLR 1101 [c]; Sebastiano v State of NewYork, 92 AD2d 966, 966 [1983]).
Defendant's challenge to the constitutionality of CPL 440.30 (1-a) is unpreserved, asthis argument was not asserted before Supreme Court (see People v Mays, 54 AD3d778, 778 [2008], lv denied 11 NY3d 927 [2009]; People v Schaurer, 32 AD3d1241, 1241 [2006]). Further, the record lacks any indication that defendant providedthe Attorney General with notice of his challenge to the constitutionality of the statute(see Executive Law § 71 [1], [3]; People v Perez, 93 AD3d1032, 1038-1039 [2012], lv denied 19 NY3d 1000 [2012]). Accordingly,this argument is not properly before us.
Rose, Devine and Clark, JJ., concur. Ordered that the order is affirmed.