PEOPLE v. SMITH (1997)

Order, Supreme Court, New York County (Arlene Silverman, J.)., entered on or about June 14, 1996, which denied defendant's motion, brought pursuant to CPL 440.10(1)(g), to vacate a judgment of the same court (Richard Failla, J.), rendered October 1, 1990, convicting defendant, after a jury trial, of rape in the first degree and related crimes, and imposing sentence, unanimously affirmed.

 We agree with the motion court that the results of the post-conviction DNA tests would not have probably resulted in a more favorable verdict for defendant (see, CPL 440.10[1][g], 440.30[1-a] ).   The fact that defendant was not the source of the semen is entirely consistent with the victim's testimony that she had intercourse with her boyfriend shortly before the rape, and that she did not know if defendant ejaculated.   Moreover, the evidence of guilt was overwhelming and there is no claim of mistaken identity.   The court correctly applied the high standard applicable to newly discovered evidence, to wit, probability of affecting the verdict, and the court's decision to order the post-conviction DNA test pursuant to CPL 440.30(1-a) did not necessarily require it to grant the motion pursuant to CPL 440.10 [1] [g] upon receipt of a test result favorable to defendant.

 To the extent that defendant claims that DNA testing should have been conducted by the People, such claim is not properly before us (CPL 440.10 [2] [a] ), having been rejected on defendant's direct appeal (204 A.D.2d 140, 612 N.Y.S.2d 13, lv. denied 84 N.Y.2d 872, 618 N.Y.S.2d 18, 642 N.E.2d 337).

MEMORANDUM DECISION.