PEOPLE v. LETIZIA (2021)

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 without a hearing that part of his motion seeking, pursuant to CPL 440.30 (1-a), to have forensic DNA testing performed on a hair recovered from a knife used in the attack underlying defendant's conviction of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1]), and criminal possession of a weapon in the third degree (§ 265.02 [1]). Defendant's conviction arose from the beating and stabbing of a victim in his home by defendant and an accomplice (People v. Letizia, 159 A.D.2d 1010, 1011, 552 N.Y.S.2d 732 [4th Dept. 1990], lv denied 76 N.Y.2d 738, 558 N.Y.S.2d 900, 557 N.E.2d 1196 [1990]). On appeal, we affirmed the judgment convicting defendant of those crimes (id.). At trial, the victim testified that defendant and his accomplice both stabbed the victim using the same knife. A forensic scientist testified that the laboratory collected a “[s]uspected hair” on a knife collected from the scene, but did not perform DNA testing on that hair.

Supreme Court properly denied without a hearing defendant's motion with respect to DNA testing “inasmuch as that issue was previously raised and addressed on the merits on defendant's prior motion seeking the same relief” (People v. Simmons, 180 A.D.3d 1328, 1328, 115 N.Y.S.3d 728 [4th Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020]; see People v. Letizia, 141 A.D.3d 1129, 1130, 35 N.Y.S.3d 816 [4th Dept. 2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016], reconsideration denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017]). In any event, the court also properly denied that part of the motion on the merits because even if the requested item was subjected to DNA testing and such testing revealed the presence of DNA that did not belong to defendant, there would be “no reasonable probability that defendant would have received a more favorable verdict had those test results been introduced at trial” (Letizia, 141 A.D.3d at 1130, 35 N.Y.S.3d 816 [internal quotation marks omitted]; see People v. Swift, 108 A.D.3d 1060, 1061, 968 N.Y.S.2d 782 [4th Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013]). As we previously noted, the victim testified that defendant, who was previously known to him, participated in the assault, and that testimony “would not have been impeached or controverted by evidence that the DNA of another individual[, including that of the victim himself,] was discovered on the knife” (Letizia, 141 A.D.3d at 1130, 35 N.Y.S.3d 816 [internal quotation marks omitted]; see Swift, 108 A.D.3d at 1062, 968 N.Y.S.2d 782).

Finally, inasmuch as defendant failed to obtain leave to appeal from the order insofar as it denied those parts of his motion seeking relief pursuant to CPL 440.10 and 440.20, his remaining contentions, all of which stem from the denial of those parts of the motion, are not properly before us on this appeal (see CPL 450.15 [1], [2]; People v. Loiz [Appeal No. 2], 175 A.D.3d 872, 873, 107 N.Y.S.3d 527 [4th Dept. 2019]; People v. Fuller, 124 A.D.3d 1394, 1395, 998 N.Y.S.2d 554 [4th Dept. 2015], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015]).