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

617
KA 12-00572
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAMMY SWIFT, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

SAMMY SWIFT, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.

RITA DAVE, BROOKLYN, FOR THE JEFFREY DESKOVIC FOUNDATION FOR JUSTICE,
AMICUS CURIAE.


     Appeal from an order of the Cayuga County Court (Thomas G. Leone,
J.), entered October 28, 2010. The order, insofar as appealed from,
denied the motion of defendant for additional 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 his pro se motion pursuant to CPL 440.30 (1-a) for additional
DNA testing of certain items secured in connection with his conviction
of murder in the second degree (Penal Law § 125.25 [3]) and robbery in
the first degree (§ 160.15 [1]). Defendant’s conviction arose from
the robbery and fatal beating of a 68-year-old victim in his home by
defendant and two accomplices (People v Swift, 241 AD2d 949, 949, lv
denied 91 NY2d 881, reconsideration denied 91 NY2d 1013). On appeal,
we affirmed the judgment convicting defendant of those crimes (id.).
At trial, one of defendant’s accomplices testified that, after the
attack, defendant wiped blood off of his arm onto a couch cushion. A
forensic scientist testified that two bloodstains on the couch
cushions contained samples of the victim’s blood type (type A) as well
as a mixture of type A and type O, defendant’s blood type (id. at
949).

     In 2007, defendant moved to vacate the judgment of conviction
pursuant to CPL 440.10 and sought DNA testing of all of the evidence
collected in the murder investigation (People v Swift, 66 AD3d 1439,
lv denied 13 NY3d 911, reconsideration denied 14 NY3d 845). Because
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                                                         KA 12-00572

of advancements in DNA testing, the People consented to the testing of
certain items of evidence, including the blood-stained couch cushions
and the victim’s pants. The DNA test results indicated that the blood
found at the crime scene was exclusively that of the victim (id. at
1440). County Court vacated defendant’s judgment of conviction on
that ground and we reversed, concluding that “the DNA test results are
not ‘of such character as to create a probability that had such
evidence been received at the trial the verdict would have been more
favorable to the defendant’ ” (id., quoting CPL 440.10 [1] [g]).

      Defendant thereafter filed the motion at issue here seeking,
inter alia, DNA testing of additional items of evidence, i.e., the
victim’s dentures, the victim’s shirt, an afghan blanket, hypodermic
needles, hair samples from the victim and defendant, and bloody
footprints from the crime scene. We conclude that the court properly
denied that part of the motion seeking testing with respect to those
items “because defendant failed to establish that there was a
reasonable probability that, had those items been tested and had the
results been admitted at trial, the verdict would have been more
favorable to defendant” (People v Sterling, 37 AD3d 1158, 1158; see
People v Kaminski, 61 AD3d 1113, 1116, lv denied 12 NY3d 917; see also
People v Burr, 17 AD3d 1131, 1132, lv denied 5 NY3d 760,
reconsideration denied 5 NY3d 804). The two hypodermic needles
collected from the crime scene were left by paramedics who treated the
victim when he was found several days after the attack and, are
therefore unrelated to the crime. With respect to the victim’s
dentures, there is no evidence that the victim bit his attacker or
that the victim’s dentures would otherwise contain the DNA of the
attacker. As for the alleged “bloody footprints,” there is no
reference to crime scene footprints in the trial record or in the
record before us. There is similarly no reference in the record to
hair samples being taken from the victim or defendant, or to hair
being collected from the crime scene. In any event, any hairs
collected from the crime scene could have belonged to defendant, his
accomplices, the victim, the victim’s son who discovered his father
after the attack, the paramedics or police who responded to the scene,
or any number of other individuals who had been in the victim’s
apartment before the attack (see People v Brown, 36 AD3d 961, 962, lv
denied 8 NY3d 920; see also People v Workman, 72 AD3d 1640, 1640, lv
denied 15 NY3d 925, reconsideration denied 16 NY3d 838). With respect
to the victim’s shirt and the afghan blanket in which he apparently
wrapped himself after the attack, we conclude that, although such
items and, indeed, much of the crime scene were stained with blood,
there is nothing to suggest that the blood belonged to anyone but the
victim (see People v Figueroa, 36 AD3d 458, 459, lv denied 9 NY3d
843).

     Even assuming, arguendo, that the requested items were subjected
to DNA testing and that such testing revealed DNA that did not belong
to either the victim or defendant, we further conclude that there
still would be no reasonable probability that defendant would have
received a more favorable verdict had those test results been
introduced at trial (see generally People v Pitts, 4 NY3d 303, 311,
rearg denied 5 NY3d 783; People v King, 38 AD3d 1066, 1067, lv denied
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                                                         KA 12-00572

9 NY3d 877; Brown, 36 AD3d at 962). The primary evidence against
defendant was the eyewitness testimony of his two accomplices, which
was corroborated by the testimony of the accomplices’ sister and
evidence that the victim’s wallet was recovered on the route leading
from defendant’s residence to his place of employment. That testimony
would not have been impeached or controverted by evidence that the DNA
of another individual was discovered at the victim’s apartment (see
Brown, 36 AD3d at 962).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
