THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHARLIE MIXON DEFENDANT APPELLANT (2015)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHARLIE MIXON, DEFENDANT–APPELLANT.

KA 13–01565

Decided: June 12, 2015

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from an order insofar as it denied his motion pursuant to CPL 440.30(1–a) seeking DNA testing of items secured in connection with his 1990 conviction of one count of arson in the first degree and six counts of murder in the second degree (People v. Mixon, 203 A.D.2d 909, lv denied 84 N.Y.2d 830, reconsideration denied 84 N.Y.2d 909). We conclude that Supreme Court properly denied the motion. Defendant failed to establish that if DNA tests had been conducted on certain items from the crime scene and the results had been admitted at his trial that “there exists a reasonable probability that the verdict would have been more favorable to” him (CPL 440.30[1–a][a][1]; see People v. Mixon, 30 AD3d 1103, 1103, lv denied 7 NY3d 903).

Frances E. Cafarell

Clerk of the Court

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