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

97
KA 10-00076
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DANIEL JONES, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), entered October 26, 2009. The appeal was held by this
Court by order entered February 14, 2014, decision was reserved and
the matter was remitted to Supreme Court, Erie County, for further
proceedings (114 AD3d 1272). The proceedings were held and completed.

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

     Memorandum: Defendant appeals from that part of an order denying
his pro se motion pursuant to CPL 440.10 and 440.30 (1-a) seeking DNA
testing on a rape kit, underwear, an “excised piece of cloth taken
from the victim’s underwear,” swabs, slides, “hair, clothing or
shaking[s] from the victim’s clothing,” and a washcloth (see generally
CPL 450.10 [5]). We previously held this case, reserved decision, and
remitted the matter to Supreme Court to rule on that part of
defendant’s motion seeking DNA testing of those items other than the
washcloth (People v Jones, 114 AD3d 1272). Upon remittal, the court
denied the motion in its entirety, and we now affirm.

     We conclude that the court properly denied defendant’s motion
without a hearing because CPL 440.30 (1-a) “does not provide for
retesting of DNA material” (People v Holman, 63 AD3d 1088, 1088, lv
denied 13 NY3d 860; see People v Jones, 307 AD2d 721, 722, lv denied 1
NY3d 574, reconsideration denied 1 NY3d 629). It is uncontested that
the evidence defendant seeks to have tested was already subjected to
DNA testing prior to trial.

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.

Entered:   February 6, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
