People v. Reed

Appeal from an order of the Erie County Court (Michael L. D’Amico, J.), entered September 13, 2013. The order, insofar as appealed from, denied that part of the motion of defendant seeking DNA testing pursuant to CPL 440.30 (1-a) (a).

It is hereby ordered that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from that part of an order denying his pro se motion pursuant to CPL 440.30 (1-a) seeking DNA testing of blood that was on his boots when he was arrested. Because the blood was subjected to DNA testing before trial, and “CPL 440.30 (1-a) does not provide for retesting of DNA material” (People v Holman, 63 AD3d 1088, 1088 [2009], lv denied 13 NY3d 860 [2009]; see People v Jones, 307 AD2d 721, 722 [2003], lv denied 1 NY3d 574 [2003], reconsideration denied 1 NY3d 629 [2004]), we conclude that County *1509Court properly denied the motion. In any event, we note that the primary issue at trial was the identity of the perpetrator who committed, inter alia, nine counts of murder in the second degree, and the People established through the testimony of multiple eyewitnesses, without presenting any DNA evidence, that the perpetrator was defendant (People v Reed, 236 AD2d 866, 866-867 [1997], lv denied 89 NY2d 1099 [1997]). We therefore further conclude that there is no reasonable probability that the verdict would have been more favorable to him even if DNA testing had established that the blood on the boots was not that of any of the victims (see CPL 440.30 [1-a] [a] [1]; People v Pitts, 4 NY3d 303, 311 [2005], rearg denied 5 NY3d 783 [2005]; People v Swift, 108 AD3d 1060, 1061-1062 [2013], lv denied 21 NY3d 1077 [2013]; People v Brown, 36 AD3d 961, 961-962 [2007], lv denied 8 NY3d 920 [2007]).