People v. Davis , 749 N.Y.S.2d 204 ( 2002 )

Appeal from an order of Onondaga County Court (Fahey, J.), entered January 17, 2002, which denied defendant’s motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence from a trial in 1978.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: County Court properly denied defendant’s motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence from a trial in 1978. Defendant failed to meet his burden of establishing that the evidence is still in existence (see People v Ahlers, 285 AD2d 664, lv denied 97 NY2d 701; see also People v Logan, 291 AD2d 459, lv denied 98 NY2d 638). Present — Pine, J.P., Wisner, Hurlbutt, Kehoe and Burns, JJ.