People v. Hayes

—Order unanimously affirmed. Memorandum: In 1989 defendant was convicted of murder in the second degree for the strangulation death of the victim. We reversed that judgment of conviction based on an improper jury instruction (People v Hayes, 168

*1009AD2d 939). In 1991 defendant was again convicted of murder in the second degree, and we affirmed the judgment (People v Hayes, 186 AD2d 1044, lv denied 81 NY2d 840). In 1997 defendant filed a motion pursuant to CPL 440.30 (1-a) seeking DNA testing of fingernail scrapings recovered from the victim. DNA technology was not available at the time of defendant’s trials. County Court denied that motion. Defendant filed a notice of appeal on January 7, 2000, but never perfected the appeal. On August 20, 2000, defendant filed a second motion pursuant to CPL 440.30 (1-a) seeking DNA testing, and the same County Court Judge granted the motion.

We agree with the People that the second motion was procedurally improper. Nevertheless, as a matter of discretion in the interest of justice, we treat defendant’s second motion as one to renew and conclude that it was properly granted. We conclude that there is a reasonable probability that the verdict would have been more favorable to defendant if a DNA test had been conducted on the victim’s fingernail scrapings and those test results had been admitted at trial (see, CPL 440.30 [1-a]). (Appeal from Order of Erie County Court, D’Amico, J.— CPL 440.30 [1-a].) Present — Green, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.