People v. Perry

Contrary to the defendant’s contention, the Supreme Court correctly determined that, despite certain changes in the law relevant to motions pursuant to CPL 440.30 (1-a) (see CPL 440.30 [1-a] [b]; People v Pitts, 4 NY3d 303, 311 [2005]) since the time of the defendant’s prior unsuccessful motion pursuant thereto (see People v Perry, 295 AD2d 452 [2002]), the defendant was still required to demonstrate that there exists a reasonable 1115 probability that the verdict would have been more favorable to him if a DNA test had been conducted on the evidence at issue, and if the results had been admitted at the subject trial (see CPL 440.30 [1-a]). The defendant failed to make such a showing. Under such circumstances, the Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.30 (1-a) for forensic DNA testing of certain evidence recovered by the police (see People v Pitts, 4 NY3d at 311; People v Bolling, 65 AD3d 1054, 1054 [2009]; see also e.g. People v Hai Guang Zheng, 69 AD3d 878, 879 [2010]; cf. People v Barnwell, 6 AD3d 1147 [2004], revd 4 NY3d 303 [2005]). Dillon, J.P, Baltin, Leventhal and Belen, JJ., concur.