In denying the defendant’s motion, the judge rejected the defendant’s argument that the results of the DNA testing constituted newly discovered evidence requiring the Court to vacate his conviction, since the defendant’s DNA was not found on the victim’s body. The judge concluded that the DNA test results did not constitute newly discovered evidence because it would most probably have not resulted in a more favorable verdict to the defendant had it been admitted at trial. The Court’s reasoning was based upon the trial testimony established that scratches on the victim’s body were the result of a struggle at the time of the attack, but there was no testimony showing any contact between the victim’s fingernails and the defendant’s body; if anything, the scenario depicted allowed for the victim’s DNA under the defendant’s fingernails. According to the criminal trial testimony of the Detective of the Queens Homicide Squad, the defendant told him that in attempting to defend himself the defendant made a kicking movement which set the gun off. Therefore, there would not have been a period of time where the transference of DNA from the defendant to the victim could have been possible; and most importantly, the criminalist’s findings indicated that no conclusions concerning the source of the DNA not attributed to the defendant could be made. The DNA evidence was inconclusive and would most probably have not changed the jury’s verdict if it had been admitted at trial.
The defendant moved for leave to appeal the denial of his CPL§440.10 motion but the Appellate Division denied the defendant’s application for leave to appeal. Pursuant to CPL 440.30, the defendant has moved for an order directing the performance of a forensic DNA comparison test. More specifically, the defendant seeks to submit a sample of his own DNA to have it compared to the DNA alleles detected in right nail, left nail and right nail scrapings of the exchange student. The People have submitted an affirmation in opposition.
Submitted by the People in support of their opposition to the defendant’s motion is a sworn to affidavit prepared by an Assistant Director from the OCME Department of Forensic Biology, where she has been employed for 13½ years. The Assistant Director reviewed the lab report prepared by the Criminalist relating to the testing of the post mortem nail clippings and nail scrapings of the victim. In sum and substance, the Assistant Director concurs with the conclusions originally drawn by the Criminalist that is, that the few DNA alleles detected in the nail clippings and scrapings do not belong to the exchange student and are not suitable for comparison. Furthermore, the Assistant Director unequivocally states that what was written to the defendant was simply not accurate. Assault is not an issue.
Conclusions of Law provides that when the defendant’s motion requests the performance of a forensic DNA test on specified evidence, and upon the court’s determination that any evidence containing deoxyribonucleic acid (DNA) was secured in connection with the trial resulting in the judgment, the court shall grant the application for a forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.
As has been set forth above, the DNA samples detected and preserved from the autopsy of the exchange student either match the victim’s DNA profile or are not suitable for comparison to a DNA sample submitted by this defendant or anyone else. Therefore, the so-called comparison test sought by the defendant is not forensically possible at this point in time. Moreover, since there was no evidence at trial that there existed a possibility of a transference of DNA from the defendant to the victim during the course of the attempted robbery/murder, and the defendant still maintains that his confession was false, in that he claims that he was not present at the time of the gun crime, the results of any forensic DNA test comparing the defendant’s DNA to the unknown samples would be inconclusive; therefore, it is the Court’s determination that despite an admission at trial of inconclusive test results, there does not exist a reasonable probability that the verdict would have been more favorable to the defendant. Accordingly, the defendant’s motion for a comparison DNA test is denied.