Opinion
No. 9996, Ind. 4023/89.
January 9, 2007.
Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about August 13, 2004, which denied defendant's CPL 440.30 (1-a) motion for DNA testing of a possible blood sample, unanimously affirmed.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Ameer Benno of counsel), for respondent.
Before: Tom, J.P., Friedman, Nardelli, Catterson and Malone, JJ.
There is no reason to believe DNA testing could provide any support for defendant's theory that an alternative perpetrator shot and killed the victim in the underlying case that led to defendant's murder conviction ( see People v Dearstyne 305 AD2d 850, 853, lv denied 100 NY2d 593; People v Smith, 245 AD2d 79, lv denied 92 NY2d 861). Given the trial testimony, including that of the defense witnesses, there is no basis upon which to suspect that any blood found on the street near the victim's body came from anyone but the victim. Defendant's assertion that the blood may have come from the claimed alternate assailant, who allegedly had a fight with the victim in a nearby club prior to the shooting, is highly speculative.