Defendant was convicted of the rape of one victim and the murder of another during an incident in 1980. Over a substantial dissent, the First Department determined that the recent DNA test results re: hairs found on the perpetrator’s hat and DNA found under the fingernails of the murder victim—results which ruled out the defendant—did not warrant vacation of defendant’s conviction pursuant to a CPL 440 motion, and did not warrant a hearing. The First Department noted the strength of the identification evidence provided by the rape victim and the fact that only three of 18 hairs taken from the hat were tested by the defense. The majority of the First Department wrote:
Defendant has not established that the newly discovered DNA evidence “is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [him]” … * * *
In deciding a CPL 440.10 motion, a hearing to develop additional facts is not “invariably necessary”; rather, CPL 440.30 contemplates that a court will make an initial determination on the written submissions whether the motion can be decided without a hearing … . Here, we find that even if the reliability of the evidence is assumed, defendant still did not establish a legal basis for ordering a new trial. Accordingly, the factual disputes in this case were not material, and defendant was not prejudiced by the absence of a hearing.
The dissent wrote:
I respectfully dissent, because I believe the motion court should have granted defendant further DNA testing and held an evidentiary hearing before determining his motion under CPL 440.10. People v Jones, 2013 NY Slip Op 05547, 1st Dept 8-6-13