The defendant was charged in Queens County of kidnapping in the first, eight counts, and second degrees; rape in the first degree, two counts; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. Thereafter, the defendant was convicted, after a jury trial, of kidnapping in the first degree, four counts; rape in the first degree, two counts; kidnapping in the second degree; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. On 15 August 1996, the defendant was sentenced. The defendant appealed the judgment of convictions. According to the defendant, the Court erred by refusing to charge the jury as to the defense of duress and his sentence was excessive. The Appellate Division, Second Department modified the judgment by vacating the conviction of one count of sexual abuse, finding that no evidence pertaining to that count was adduced at trial. Other than that, the Appellate Division affirmed the judgment. The defendant then sought leave to appeal to the Court of Appeals. However, that application for leave was denied. The defendant then moved to vacate his judgment of conviction and argued that he was denied effective assistance of counsel, among other things, because his trial counsel failed to have the serological evidence tested for DNA after the defendant denied any involvement in the rape. On 18 June 2001, the defendant’s motion was denied, and his claims were found procedurally barred pursuant to CPL 440.10 based on the fact that the allegations were in the record, and could have been reviewed on defendant’s direct appeal. The defendant’s claims were found by the court bereft of merit. The defendant then sought leave to appeal the denial of his motion to vacate judgment, and sought a writ of error coram nobis. A sargued by the defendant, his appellate counsel was ineffective for failing to raise on appeal the claims he raised in his motion to vacate. The Appellate Division denied both applications, viz.: defendant’s application for leave to appeal and his application for a writ of error coram nobis.
The defendant, pro se, now moved for an order directing that forensic Deoxyribonucleic Acid (DNA) testing be performed on specific evidence; for an order vacating the judgment of conviction; and to have the defendant produced at any hearing.