The People, etc., respondent, v. Lamonte Johnson, appellant. (2013)

Submitted—November 26, 2013

DECISION & ORDER

Appeal by the defendant from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated March 26, 2010, as denied, without a hearing, his motion pursuant to CPL 440.30(1–a) for DNA testing of certain evidence.

ORDERED that the order is affirmed insofar as appealed from.

The Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL 440.30(1–a) for DNA testing of certain evidence since the defendant failed to show that there was a reasonable probability that the verdict would have been more favorable to him had DNA tests been performed (see CPL 440.30[1–a];  People v. Perry, 89 AD3d 1114, 1115;  People v. Bolling, 65 AD3d 1054, 1054;  People v. Weay, 54 AD3d 695, 695).

Although the defendant also moved to vacate the judgment of conviction pursuant to CPL 440.10, the issues raised in that motion are not properly before this Court, as he was denied leave to appeal from so much of the order as denied that motion by decision and order on application of this Court dated August 12, 2010 (see People v. Jean, 74 AD3d 1234, 1234;  People v. DeLuca, 45 AD3d 777, 778;  People v. Rivas, 206 A.D.2d 549, 550).

MASTRO, J.P., ROMAN, MILLER and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court