        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

468
KA 14-00233
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SALVATORE LETIZIA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SALVATORE LETIZIA, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DONNA A.
MILLING OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), dated November 22, 2013. The order, insofar as
appealed from, denied that part of the motion of defendant for DNA
testing pursuant to CPL 440.30 (1-a).

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order that, inter alia,
denied that part of his pro se motion seeking, pursuant to CPL 440.30
(1-a), DNA testing of a hair found on a knife involved in an attack in
connection with defendant’s conviction of attempted murder in the
second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first
degree (§ 120.10 [1]), and criminal possession of a weapon in the
third degree (§ 265.02 [1]). Defendant’s conviction arose from the
beating and stabbing of a victim in his home by defendant and an
accomplice (People v Letizia, 159 AD2d 1010, 1011, lv denied 76 NY2d
738). On appeal, we affirmed the judgment convicting defendant of
those crimes (id.). At trial, the victim testified that defendant and
his accomplice, among other things, both stabbed the victim using the
same knife. A forensic scientist testified that the laboratory
collected a “[s]uspected hair” on a knife collected from the scene.
The laboratory did not perform DNA testing on that hair.

     We conclude that Supreme Court properly denied without a hearing
that part of the motion seeking DNA testing of the hair. “Even
assuming, arguendo, that the requested item[] w[as] subjected to DNA
testing and that such testing revealed DNA that did not belong to . .
. defendant, we . . . conclude that there . . . would be no reasonable
probability that defendant would have received a more favorable
                                 -2-                           468
                                                         KA 14-00233

verdict had those test results been introduced at trial” (People v
Swift, 108 AD3d 1060, 1061, lv denied 21 NY3d 1077; see People v
Kaminski, 61 AD3d 1113, 1116, lv denied 12 NY3d 917; People v
Sterling, 37 AD3d 1158, 1158; see also People v Burr, 17 AD3d 1131,
1132, lv denied 5 NY3d 760, reconsideration denied 5 NY3d 804). The
victim knew defendant prior to the attack, and the victim’s testimony
provided the primary evidence against defendant. “That testimony
would not have been impeached or controverted by evidence that the DNA
of another individual was discovered” on the knife (Swift, 108 AD3d at
1062).




Entered:   July 8, 2016                        Frances E. Cafarell
                                               Clerk of the Court
