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MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED.

The Second Department determined Supreme Court should have granted defendant’s motion for DNA testing of some, but not all, of the evidence admitted at his trial:

Here, the defendant established that if forensic DNA testing had been conducted on two blood samples, a bloody sweater, and fingernail scrapings of the decedent, if any, recovered by the police from the crime scene, and if the results of such testing had been admitted at trial, there exists a reasonable probability that the verdict would have been more favorable to him … . However, with respect to the defendant’s request for forensic DNA testing of hair and fibers, the defendant failed to demonstrate that there is a reasonable probability that the verdict would have been more favorable to him had DNA testing results of those items been admitted into evidence … .

In opposition to the motion, the People failed to come forward with evidence demonstrating the existence or nonexistence of the materials sought, and whether such materials are available for testing. “[T]he defendant does not bear the burden of showing that the specified DNA evidence exists and is available in suitable quantities to make testing feasible. To the contrary, it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing” … . “[A] conclusory assertion that the evidence no longer exists is legally insufficient” … . People v Robinson, 2017 NY Slip Op 00665, 2nd Dept 2-1-17

 

CRIMINAL LAW (MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)/EVIDENCE (CRIMINAL LAW, MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)/DNA (CRMINAL LAW, MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIED)

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NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL... MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED...