People v. Reed

Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.

MEMORANDUM:

Defendant appeals from that part of an order denying his pro se motion pursuant to CPL 440.30(1–a) seeking DNA testing of blood that was on his boots when he was arrested. Because the blood was subjected to DNA testing before trial, and “CPL 440.30(1–a) does not provide for retesting of DNA material” (People v. Holman, 63 A.D.3d 1088, 1088, 880 N.Y.S.2d 559, lv. denied 13 N.Y.3d 860, 891 N.Y.S.2d 694, 920 N.E.2d 99 ; see People v. Jones, 307 A.D.2d 721, 722, 761 N.Y.S.2d 928, lv. denied 1 N.Y.3d 574, 775 N.Y.S.2d 791, 807 N.E.2d 904, reconsideration denied 1 N.Y.3d 629, 777 N.Y.S.2d 28, 808 N.E.2d 1287 ), we conclude that County

Court properly denied the motion. In any event, we note that the primary issue at trial was the identity of the perpetrator who committed, inter alia, nine counts of murder in the second degree, and the People established through the testimony of multiple eyewitnesses, without presenting any DNA evidence, that the perpetrator was defendant (People v. Reed, 236 A.D.2d 866, 866–867, 654 N.Y.S.2d 498, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994 ). We therefore further conclude that there is no reasonable probability that the verdict would have been more favorable to him even if DNA testing had established that the blood on the boots was not that of any of the victims (see CPL 440.30[1–a][a][1] ; People v. Pitts, 4 N.Y.3d 303, 311, 795 N.Y.S.2d 151, 828 N.E.2d 67, rearg. denied 5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663 ; People v. Swift, 108 A.D.3d 1060, 1061–1062, 968 N.Y.S.2d 782, lv. denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 ; People v. Brown, 36 A.D.3d 961, 961–962, 827 N.Y.S.2d 742, lv. denied 8 N.Y.3d 920, 834 N.Y.S.2d 510, 866 N.E.2d 456 ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed.