People v. Barnwell

Appeal from an order of the Supreme Court, Monroe County (Donald J. Mark, J.), entered December 21, 2000. The order denied defendant’s motion pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence.

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

Memorandum: Supreme Court properly denied the motion of defendant pursuant to CPL 440.30 (1-a) for DNA testing of certain evidence secured in connection with his 1987 trial. “Contrary to defendant’s contention, it is incumbent upon a defendant to ‘show that the evidence to be tested still exists and is available in quantities sufficient to make testing feasible at this late date’ ” (People v Ahlers, 285 AD2d 664, 665 [2001], lv denied 97 NY2d 701 [2002], quoting Matter of Washpon v New York State Dist. Attorney, 164 Misc 2d 991, 997 [1995]; see People v Davis, 299 AD2d 874, 875 [2002], lv denied 99 NY2d 581 [2003]). Further, there is no need for a hearing to inquire into the destruction of the evidence because the People were under no obligation to preserve the evidence after defendant’s direct appeals were exhausted in 1990, more than 10 years prior to the instant motion (see Ahlers, 285 AD2d at 665). Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Gorski, JJ.