People v. Hurdle , 149 A.D.3d 528 ( 2017 )

People v Hurdle (2017 NY Slip Op 02917)

People v Hurdle

2017 NY Slip Op 02917

Decided on April 18, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 18, 2017
Renwick, J.P., Mazzarelli, Moskowitz, Kapnick, Webber, JJ.

3238 4250/74

[*1]The People of the State of New York, Respondent,

v

Edward Hurdle, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.

Order, Supreme Court, New York County (Neil E. Ross, J.), entered on or about October 29, 2013, which denied defendant's CPL 440.30(1—a) motion for DNA testing, unanimously affirmed.

Defendant's motion was materially indistinguishable from a prior motion that was denied in an order affirmed by this Court (56 AD3d 317 [1st Dept 2008], lv denied 12 NY3d 784 [2009]). Although CPL 440.30 has been amended since defendant made the prior motion, the relevant standard for obtaining DNA testing has not changed. Further, defendant has presented no facts that were not before us on the prior appeal. Accordingly, there is no basis for departure from our previous determination that, since the crime was committed in such a manner that the absence of defendant's DNA from any or all of the crime scene evidence at issue would not be exculpatory. There is no reasonable probability that DNA testing would have led to a verdict more favorable to defendant.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2017

CLERK