Opinion
No. KA 05-02073.
November 9, 2007.
Appeal from an order of the Supreme Court, Monroe County (Francis A. Affronti, J.), entered July 26, 2005. The order denied defendant's motion pursuant to CPL 440.30 (1-a) for postconviction DNA testing of certain evidence.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Gorski, Lunn, Peradotto and Green, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Supreme Court properly denied the motion of defendant pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence secured in connection with his 1987 trial. Contrary to defendant's contention, the People met their burden of establishing that no such evidence is available for testing ( see People v King, 38 AD3d 1066, 1067, lv denied 9 NY3d 877; People v Keene, 10 Misc 3d 881, 888; see generally People v Pitts, 4 NY3d 303, 311-312, rearg denied 5 NY3d 783). Contrary to defendant's further contention, there is no basis for imposing sanctions on the People based on the unavailability of the evidence. "[T]he People have an obligation to preserve evidence `until all appeals have been exhausted'" ( People v Hernandez, 25 AD3d 566, 567, lv denied 6 NY3d 848, quoting People v Brown, 196 AD2d 465, 466, lv denied 82 NY2d 804), and the instant motion was made more than 10 years after all of defendant's appeals had been exhausted.