The People of the State of New York, Respondent, v. Keith Foxworth, Defendant-Appellant.

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York, Respondent, v. Keith Foxworth, Defendant-Appellant.

4328

Decided: February 22, 2011

Saxe, J.P., Friedman, DeGrasse, Freedman, Abdus-Salaam, JJ. Steven Banks, The Legal Aid Society, New York (Amy I. Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

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Order, Supreme Court, New York County (Roger S. Hayes J.), entered on or about October 26, 2007, which denied defendant's CPL 440.30(1-a) motion for DNA testing, unanimously affirmed.

CPL 440.30(1-a), which provides a procedure for convicted defendants to seek DNA testing, is inapplicable to persons who pleaded guilty (People v. LeBron, 44 AD3d 310 [2007], lv. denied 9 NY3d 1007 [2007];  People v. Byrdsong, 33 AD3d 175 [2006], lv denied 7 NY3d 900 [2006] ).   Since defendant pleaded guilty, he may not avail himself of the provisions of the statute.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK