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PEOPLE DEMONSTRATED THE RAPE KIT AND BLOOD AND SALIVA EVIDENCE RELATED TO A 1988 PROSECUTION HAD BEEN DESTROYED AND DEFENDANT DID NOT DEMONSTRATE THE AVAILABILITY OF THE EVIDENCE WOULD HAVE CHANGED THE VERDICT, MOTION FOR DNA TESTING AND MOTION TO VACATE THE CONVICTION PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for DNA testing and his motion to vacate his conviction were properly denied. Defendant had been convicted of sodomy in 1988. After a successful habeas corpus petition, a second trial was held and defendant was again convicted. After the habeas corpus petition had been filed, but before it was docketed, the NYPD destroyed the rape kit and blood and saliva samples. No DNA testing had been done on the evidence:

Any defendant, regardless of the date of conviction, may move for DNA testing on specified evidence. The court shall grant the application if it determines that had a DNA test been conducted on the evidence and had the results of that evidence been admitted at trial, “there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30[1-a][a][1]). Defendant bears the burden of making the “reasonable probability” showing … . Where the People assert that the evidence to be tested has been destroyed or cannot be located, the statute provides that the people must make “a representation to that effect” and submit “information and documentary evidence in the possession of the people concerning the last known physical location of such specified evidence” (CPL 440.30[1-b][b]). It is the People’s burden to show that the evidence could no longer be located and was thus no longer available for testing … .

We find that the People met their burden. …

… .[W]e find that defendant has not carried his burden of establishing that, even had he been able to secure the original evidence and perform DNA testing on it, there is a reasonable probability that the verdict would have been different … . People v Dorsey, 2019 NY Slip Op 01526, First Dept 3-5-19

 

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