PEOPLE v. ESPINO (2020)

The motion court properly determined that defendant, who entered a plea of guilty to second-degree burglary in 2010, is not eligible to apply for postconviction DNA testing.  First, defendant was never charged with, or convicted of, any of the enumerated offenses that render the statute applicable where a defendant has pleaded guilty (see CPL 440.30[1–a][a][2] ).  Second, the provision for postplea DNA testing only apples to defendants who, unlike this defendant, entered a plea of guilty on or after August 1, 2012 (see L 2012, ch 55, part A, § 2).  Third, defendant is essentially asking for retesting of evidence that has already been tested, and the statute does not provide for such retesting (see People v. Witherspoon, 156 A.D.3d 828, 828–29, 65 N.Y.S.3d 725 [2d Dept. 2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 666, 102 N.E.3d 443 [2018] ).

Further, defendant failed to show a substantial probability that the retesting would have established defendant's actual innocence, which is the statutory standard in postplea cases.  As noted by the motion court, there was significant evidence of defendant's guilt.  In reference to burglaries at two buildings, defendant was captured on video at the scene, wearing the same jacket as when he was arrested (and apparently with the same glasses).  Defendant also admitted to the police that he was the person depicted in the videos and made inculpatory statements concerning his presence at all three buildings.

We have considered defendant's remaining contentions and find them unavailing.