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People v. Toland

153 A.D.3d 966 Court N.Y. App. Div. Decision date 2017-08-03 English

Judges Egan Jr., J.P., Lynch, Rose, Aarons and Rumsey, JJ., concur.

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The People of the State of New York, Respondent, v Charles W. Toland Jr., Appellant.
[56 NYS3d 917]

Appeal from an order of the County Court of Schenectady County (Loyola, J.), entered January 30, 2015, which denied defendant’s motion pursuant to CPL 440.30 (1-a) for the performance of forensic DNA testing on specified evidence.

In 1996, defendant was convicted following a jury trial of a

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number of crimes, the most serious of which was murder in the second degree, in connection with the death of a woman whose body was found in the basement of an apartment building in Schenectady County. His conviction was affirmed on appeal with a modified sentence, and he is serving an aggregate prison term of 30 years to life (People v Toland, 284 AD2d 798 [2001], lv denied 96 NY2d 942 [2001]). In 2014, defendant, among other things, made a pro se motion pursuant to CPL 440.30 (1-a) for forensic DNA testing of certain hair fragments that were found on the victim.[1] The People opposed the motion, and it was denied by County Court. Defendant appeals.

Appellate counsel seeks to be relieved of her assignment of representing defendant on the ground that there are no nonfrivolous issues that may be raised on appeal. Based upon our review of the record, counsel’s brief and defendant’s pro se submission, we agree (see People v Humphrey, 92 AD3d 1024 , 1025 [2012]; see also People v Pugh, 288 AD2d 634 , 634-635 [2001], lv denied 91 NY2d 976 [1998]). Therefore, the order is affirmed, and counsel’s request for leave to withdraw is granted (see People v Stokes, 95 NY2d 633 [2001]; People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]).

Egan Jr., J.P., Lynch, Rose, Aarons and Rumsey, JJ., concur.

Ordered that the order is affirmed, and application to be relieved of assignment granted.

* This is defendant’s fourth CPL article 440 motion, as he made three prior motions seeking different relief that were denied, as well as an application for a writ of error coram nobis and a federal habeas corpus application that also were denied.

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