The People, etc., respondent, v. Eric G. Witherspoon, appellant.

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

The People, etc., respondent, v. Eric G. Witherspoon, appellant.

2015–05985 (Ind.No. 1111–08)

Decided: December 20, 2017

JOHN M. LEVENTHAL, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ. Salvatore C. Adamo, New York, NY, for appellant. Emily Constant, Acting District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

Submitted—October 17, 2017

DECISION & ORDER

Appeal by the defendant pursuant to CPL 450.10(5) from so much of an order of the County Court, Suffolk County (Braslow, J.), dated June 9, 2015, as denied, without a hearing, that branch of his motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police.

ORDERED that the order is affirmed insofar as appealed from.

The defendant challenges the denial of that branch of his motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police.  However, trial evidence established that forensic DNA testing was performed on the evidence in question.  Since CPL 440.30(1–a) does not provide for retesting of DNA material, the County Court properly denied, without a hearing, that branch of the defendant's motion which was pursuant to CPL 440.30(1–a) for forensic DNA testing of certain evidence recovered by the police (see People v. Reed, 129 AD3d 1508, 1508–1509;  People v. Holman, 63 AD3d 1088, 1088;  People v. Jones, 307 A.D.2d 721, 722).

LEVENTHAL, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court