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

538
KA 12-01908
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NEWNON FLAX, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

NEWNON FLAX, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), entered May 3, 2012. The order, insofar as appealed
from, denied that part of the motion of defendant pursuant to CPL
440.30 (1-a) for DNA testing.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law, and the matter is remitted to Supreme
Court, Erie County, for a hearing in accordance with the following
Memorandum: Defendant appeals from that part of an order denying his
postjudgment motion pursuant to CPL 440.30 (1-a) for DNA testing of a
certain item of evidence secured in connection with his conviction of,
inter alia, rape in the first degree (Penal Law § 130.35 [1]). This
Court previously modified the judgment of conviction by vacating the
sentence (People v Flax, 155 AD2d 894, lv denied 76 NY2d 734) and, on
the appeal from the judgment after resentencing, we affirmed (People v
Flax, 178 AD2d 1026). Preliminarily, we note that the notice of
appeal herein incorrectly states that defendant is appealing from the
judgment, rather than the order denying the postjudgment motion. As a
matter of discretion in the interest of justice, however, we treat the
notice of appeal as valid (see CPL 460.10 [6]; People v Jones, 114
AD3d 1272, 1272). Inasmuch as defendant’s previous CPL 440.30 (1-a)
motion was denied, CPL 440.10 (3) (b), made applicable to this motion
pursuant to 440.30 (2), permits but does not require denial of the
motion. Under the circumstances of this case, we conclude that
Supreme Court erred in denying the instant CPL 440.30 (1-a) motion
(see People v Tankleff, 46 AD3d 846, 847; see also People v Hayes, 284
AD2d 1008, 1009, lv denied 97 NY2d 641).

     The identification evidence at trial consisted of testimony from
the complainant that, although she could not see her attacker, she
                                 -2-                           538
                                                         KA 12-01908

recognized the voice as defendant’s from the three words the attacker
spoke when he grabbed her. The complainant also stated that she
observed the profile of her attacker in the dark of night from three
houses away as he was running from the scene. At trial, the
complainant testified that, during a subsequent encounter, defendant
made a statement indicating that the complainant “gave it to him.”
The complainant also testified, however, that defendant, during that
same subsequent encounter, denied ever touching her. In a posttrial
statement to a probation officer, the complainant stated that, during
that subsequent encounter, defendant had told the complainant that “he
had a girlfriend at home and that she[, i.e., the girlfriend,] would
give it to him.” Thus, what had initially been characterized by the
prosecution as an admission by defendant actually may not have been
one. In other words, the complainant’s equivocal accounts of
defendant’s statements render it possible that defendant never
admitted to engaging in any sexual encounter with the complainant,
consensual or otherwise.

     Following the attack, a semen stain was found on the crotch of
the jumpsuit that the complainant had been wearing. There was no
indication that the source of the semen could have been anyone but the
attacker (see e.g. Tankleff, 46 AD3d at 847; People v Keene, 4 AD3d
536, 536-537; cf. People v Swift, 108 AD3d 1060, 1061, lv denied 21
NY3d 1077; People v Workman, 72 AD3d 1640, 1640, lv denied 15 NY3d
925, reconsideration denied 16 NY3d 838), but no DNA testing was
performed on the jumpsuit. Based on the record before us, we conclude
that “the evidence of defendant’s guilt was not so overwhelming that a
different verdict would not have resulted if . . . DNA testing
excluded him” as the source of the semen on the jumpsuit (People v
West, 41 AD3d 884, 885; see People v Bush, 90 AD3d 945, 946; Keene, 4
AD3d at 537). We therefore remit the matter to Supreme Court for a
hearing to determine whether the jumpsuit is still in existence and,
if so, whether there is sufficient DNA material for testing (see
Keene, 4 AD3d at 537).

     With respect to the contentions raised by defendant in his pro se
supplemental brief, we conclude that they are not properly before us
(see People v Johnson, 112 AD3d 969, 970).




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
