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

661
KA 13-01896
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ALEXANDER REED, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from an order of the Erie County Court (Michael L.
D’Amico, J.), entered September 13, 2013. The order, insofar as
appealed from, denied that part of the motion of defendant seeking DNA
testing pursuant to CPL 440.30 (1-a) (a).

     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 440.30 (1-a) seeking DNA testing of
blood that was on his boots when he was arrested. Because the blood
was subjected to DNA testing before trial, and “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), we
conclude that County Court properly denied the motion. In any event,
we note that the primary issue at trial was the identity of the
perpetrator who committed, inter alia, nine counts of murder in the
second degree, and the People established through the testimony of
multiple eyewitnesses, without presenting any DNA evidence, that the
perpetrator was defendant (People v Reed, 236 AD2d 866, 866-867, lv
denied 89 NY2d 1099). We therefore further conclude that there is no
reasonable probability that the verdict would have been more favorable
to him even if DNA testing had established that the blood on the boots
was not that of any of the victims (see CPL 440.30 [1-a] [a] [1];
People v Pitts, 4 NY3d 303, 311, rearg denied 5 NY3d 783; People v
Swift, 108 AD3d 1060, 1061-1062, lv denied 21 NY3d 1077; People v
Brown, 36 AD3d 961, 961-962, lv denied 8 NY3d 920).


Entered:   June 12, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
