PEOPLE v. ALLEN (2008)

Order, Supreme Court, Bronx County (Robert G. Seewald, J.), entered on or about December 27, 2006, which denied defendant's CPL 440.30(1–a) motion for DNA testing and his CPL 440.10 motion to vacate a judgment of Supreme Court, Bronx County (Elbert Hinkson, J.), rendered May 8, 1989, convicting him, upon his plea of guilty, of rape in the first degree, unanimously affirmed.

 CPL 440.30(1–a) does not permit persons who pleaded guilty to seek DNA testing of forensic evidence (People v. Lebron, 44 A.D.3d 310, 841 N.Y.S.2d 866 [2007];  People v. Byrdsong, 33 A.D.3d 175, 820 N.Y.S.2d 296 [2006], lv. denied 7 N.Y.3d 900, 826 N.Y.S.2d 609, 860 N.E.2d 71 [2006] ).  There is no merit to defendant's argument that, since he was originally convicted after trial in 1983 and then pleaded guilty in 1989 following this Court's reversal of his trial conviction (140 A.D.2d 229, 528 N.Y.S.2d 380 [1988], lv. denied 72 N.Y.2d 1043, 534 N.Y.S.2d 942, 531 N.E.2d 662 [1988] ), his case presents a “hybrid” situation and a trial “resulted” in the judgment.  On the contrary, the trial resulted only in a judgment that this Court vacated;  the ultimate judgment resulted solely from a guilty plea.

The CPL 440.10 branches of defendant's motion are likewise without merit.