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People v. Witherspoon

156 A.D.3d 828 Court N.Y. App. Div. Decision date 2017-12-20 English

Judges Leventhal, J.P., Chambers, Maltese and Duffy, JJ., concur.

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p. 828
The People of the State of New York, Respondent, v Eric G. Witherspoon, Appellant.
[65 NYS3d 725]

Appeal by the defendant pursuant to CPL 450.10 (5) from so much of an order of the County Court, Suffolk County (Braslow, J.), dated June 9, 2015, as denied, without a hearing, that branch of his motion which was pursuant to CPL 440.30 (1-a) for forensic DNA testing of certain evidence recovered by the police.

Ordered that the order is affirmed insofar as appealed from.

The defendant challenges the denial of that branch of his motion which was pursuant to CPL 440.30 (1-a) for forensic DNA testing of certain evidence recovered by the police. However, trial evidence established that forensic DNA testing was performed on the evidence in question. Since CPL 440.30 (1-a) does not provide for retesting of DNA material, the County Court properly denied, without a hearing, that branch of the defendant’s motion which was pursuant to CPL 440.30 (1-a) for forensic DNA testing of certain evidence recovered by the police (see People v Reed, 129 AD3d 1508 ,1508-1509 [2015]; People

p. 829
v Holman, 63 AD3d 1088 , 1088 [2009]; People v Jones, 307 AD2d 721 , 722 [2003]).

Leventhal, J.P., Chambers, Maltese and Duffy, JJ., concur.

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