Opinion
2002-02866
Submitted June 13, 2003.
August 4, 2003.
Appeal by the defendant from so much of an order of the Supreme Court, Kings County (Marrus, J.), dated March 15, 2002, as, upon reargument, adhered to prior determinations and orders of the same court, dated October 29, 2001, and November 19, 2001, respectively, which denied his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court, rendered June 8, 1993, convicting him of attempted murder in the second degree, and imposing sentence. By decision, order, and certificate of this court dated August 16, 2002, the defendant was granted leave to appeal from those portions of the order dated March 15, 2002, which are not appealable as of right pursuant to CPL 450.10(5).
Medhat Shenouda, Staten Island, N.Y., appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order dated March 15, 2002, is affirmed insofar as appealed from.
Contrary to the defendant's contention, that branch of his motion which was to direct the performance of a forensic DNA test on specified evidence pursuant to CPL 440.30(1-a) was properly denied. The defendant failed to show that the evidence sought to be tested was available in quantities sufficient to make testing feasible (see People v. Ahlers, 285 A.D.2d 664). In any event, even if there had been sufficient DNA evidence to be tested and those results were admitted into evidence, the defendant failed to show that "there exists a reasonable probability that the verdict would have been more favorable" to him (CPL 440.30[1-a]; see People v. Tookes, 167 Misc.2d 601).
The Supreme Court also properly denied that branch of the defendant's motion which was to vacate his judgment of conviction on Rosario and Brady grounds (see People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; Brady v. Maryland, 373 U.S. 83), because it was based solely on the defendant's own unsubstantiated allegations and was belied by the record ( see CPL 440.30[d]; People v. Oliviery-Perez, 248 A.D.2d 645).
The defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 147; People v. Davenport, 233 A.D.2d 771, 773; People v. Aguilar, 224 A.D.2d 704).
SANTUCCI, J.P., McGINITY, TOWNES and MASTRO, JJ., concur.