Post-Conviction DNA Test Results Warranted New Trial Under 2012 Amendment to CPL 440.10

The First Department determined defendant was entitled to a new trial based on DNA evidence which was not analyzed until after the defendant was convicted. The DNA collected from under the victim’s fingernails did not match the defendant’s. The defendant’s conviction was based solely on the victim’s identification of the defendant made three weeks after she was attacked. The defendant had produced an alibi witness at his trial. The court explained the application of the recent amendment of Criminal Procedure Law 440.10:

Pursuant to CPL 440.10(1)(g-1), which became effective October 1, 2012, the court may grant a defendant’s motion to set aside the judgment when forensic DNA testing is performed after the entry of judgment upon a conviction and “the court has determined that there exists a reasonable probability that the verdict would have been more favorable to the defendant.” Unlike a motion under CPL 440.10(1)(g), a defendant relying on the results of DNA testing no longer has to show that the results of such testing is newly discovered evidence in order to seek vacatur of a judgment of conviction. The defendant only has to show that there is a reasonable probability that he would have obtained a more favorable verdict. The newly amended statute, permitting relief at any time after the entry of judgment, applies to this case… . People v Hicks, 2014 NY Slip Op 01376, 1st Dept 2-27-14