Opinion
795 KA 16–01086
06-15-2018
The PEOPLE of the State of New York, Respondent, v. Newnon FLAX, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted in 1988 of, inter alia, rape in the first degree ( Penal Law § 130.35[1] ). On a prior appeal, we reversed that part of an order denying defendant's postjudgment motion pursuant to CPL 440.30(1–a) for DNA testing because " ‘the evidence of defendant's guilt was not so overwhelming that a different verdict would not have resulted if ... DNA testing excluded him’ as the source of the semen" on an item of the complainant's clothing, i.e., a jumpsuit, secured in connection with the underlying criminal investigation ( People v. Flax, 117 A.D.3d 1582, 1584, 985 N.Y.S.2d 396 [4th Dept. 2014] ). We therefore remitted the matter to Supreme Court for a hearing to determine whether that jumpsuit still existed and, if so, whether there was sufficient DNA material on it for testing ( id. ).
Defendant now appeals from an order denying his motion for DNA testing after the hearing. Contrary to defendant's contention, the court properly determined that the People satisfied their burden of establishing that the jumpsuit could not be located by producing reliable information concerning their efforts to determine the whereabouts of that item of clothing (see generally People v. Pitts, 4 N.Y.3d 303, 312, 795 N.Y.S.2d 151, 828 N.E.2d 67 [2005] ). At the hearing, the People called a police department property clerk, a crime scene unit detective, the forensic chemist who conducted the original testing of the jumpsuit, and a District Attorney's Office investigator, each of whom testified in detail regarding their unsuccessful efforts to locate the jumpsuit (see People v. Williams, 128 A.D.3d 569, 569, 8 N.Y.S.3d 568 [1st Dept. 2015], lv denied 26 N.Y.3d 937, 17 N.Y.S.3d 100, 38 N.E.3d 846 [2015] ; People v. Garcia, 65 A.D.3d 932, 933, 886 N.Y.S.2d 110 [1st Dept. 2009], lv denied 13 N.Y.3d 907, 895 N.Y.S.2d 321, 922 N.E.2d 910 [2009] ). Contrary to defendant's further contention, CPL 440.30(1–a)(b) expressly precludes the court from drawing an adverse inference based on a purported failure to preserve evidence where, as here, the People established that, despite their efforts, "the physical location of [the] specified evidence is unknown."