PEOPLE v. VEGA (2025)

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about July 18, 2022, which denied defendant's motion pursuant to CPL 440.30(1–a) for DNA testing, unanimously affirmed.

The court providently denied defendant's motion for retesting of the remaining fingernail scrapings from the victim, and DNA testing items from the sexual assault kit and items from the crime scene.

The statute does not provide for retesting DNA material.  Thus, even though touch-type DNA testing did not exist when the items were tested before trial in 2001, the court properly denied so much of the motion that seeks to retest items already subjected to DNA testing before trial (see People v. Espino, 179 A.D.3d 491, 491, 118 N.Y.S.3d 9 [1st Dept. 2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 291, 147 N.E.3d 561 [2020];  People v. Dorcinvil, 175 A.D.3d 1421, 1422, 109 N.Y.S.3d 457 [2d Dept. 2019], lv denied 34 N.Y.3d 1077, 116 N.Y.S.3d 146, 139 N.E.3d 804 [2019]).  In any event, the highly speculative theory offered by the defense expert that testing or retesting might support a third-party culpability defense does not provide a basis for DNA testing (see People v. Concepcion, 104 A.D.3d 442, 443, 960 N.Y.S.2d 412 [1st Dept. 2013], lv denied 21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1276 [2013];  People v. Figueroa, 36 A.D.3d 458, 459, 826 N.Y.S.2d 256 [1st Dept. 2007], lv denied 9 N.Y.3d 843, 840 N.Y.S.2d 770, 872 N.E.2d 883 [2007]).  Here, defendant presented insufficient evidence that probative DNA could potentially be detected on other items.  The only evidence offered was three random alleles from a single fingernail scraping from the initial round of testing in 2001, which was contaminated and therefore insufficient to generate a DNA profile.

The testing of other fingernail scrapings in 2017, utilizing a more advanced testing technique, showed DNA from only one contributor, consistent with the victim's DNA profile, further undermining defendant's third-party culpability defense.

Defendant failed to demonstrate that there was no reasonable probability that, if a DNA test had been conducted on such evidence and the results had been admitted at the trial, the verdict would have been more favorable to the defendant (see People v. Sposito, 30 N.Y.3d 1110, 1111, 70 N.Y.S.3d 156, 93 N.E.3d 881 [2018]).  Given the other relevant facts of this case, any additional testing would, at most, show that someone other than defendant or the victim, was present in the apartment at an unknown time prior to the murder (see Concepcion, 104 A.D.3d at 443, 960 N.Y.S.2d 412).