                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 25, 2016                   107026
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

IVAN RAMOS,
                    Appellant.
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


     Barry J. Jones, Hudson Falls, for appellant.

      James E. Conboy, District Attorney, Fonda (Kelli P. McCoski
of counsel), for respondent.

                             __________


Devine, J.

      Appeal from an order of the County Court of Montgomery
County (Catena, J.), entered September 3, 2014, which denied
defendant's motion pursuant to CPL 440.30 (1-a).

      Defendant was convicted following a jury trial of two
counts of murder in the first degree and criminal possession of a
weapon in the third degree in connection with the fatal stabbing
of a man and a woman inside a Montgomery County apartment (133
AD3d 904 [2015], lvs denied 26 NY3d 1143, 1149 [2016]). He was
sentenced as a second felony offender to an aggregate term of
life in prison without the possibility of parole (id. at 905) and
his conviction was later affirmed by this Court (id. at 909).
While his appeal was pending, defendant made a pro se motion
pursuant to CPL 440.30 (1-a) to obtain expert testimony
                              -2-                107026

concerning the DNA, footprint and fingerprint evidence that had
been presented to the jury at trial or, alternatively, for an
evidentiary hearing. In support of his motion, he maintained
that his trial counsel was ineffective in failing to retain an
expert to contest such evidence and to further develop the record
in this regard. The People opposed the motion and County Court
denied it without hearing. Defendant now appeals.

      CPL 440.30 (1-a) (a) (1) provides that a defendant may
bring a postconviction motion requesting forensic DNA testing of
"specified evidence." The statute further provides that "the
court shall grant the application for forensic DNA testing of
such evidence upon its determination that if a DNA test had been
conducted on such evidence, and if the results had been admitted
in the trial resulting in the judgment, there exists a reasonable
probability that the verdict would have been more favorable to
the defendant" (CPL 440.30 [1-a] [a] [1]). As the Court of
Appeals has recognized, CPL 440.30 (1-a) was enacted to establish
a new procedure for defendants to secure DNA testing of specified
evidence (see People v Pitts, 4 NY3d 303, 309-310 [2005]).

      Defendant here has not requested DNA testing of any
evidence, and instead seeks to have expert testimony adduced for
the purpose of challenging the accuracy of scientific evidence
that was actually presented at trial. Inasmuch as CPL 440.30
(1-a) does not address requests for expert testimony, the
provision is inapplicable to defendant's request. Even if the
statute applied to the situation presented, defendant's pro se
motion contains only general and conclusory assertions regarding
the sufficiency of the scientific evidence presented, the
possibility that expert testimony would have aided his defense
and the overall effectiveness of trial counsel. Thus, defendant
has not established that "there exists a reasonable probability
that the verdict would have been more favorable to" him if he
were permitted to present the requested expert testimony, and his
motion was properly denied without a hearing (CPL 440.30 [1-a]
[a] [1]; see People v Dickson, 103 AD3d 989, 990 [2013], lv
denied 21 NY3d 1003 [2013]; see also People v Card, 115 AD3d
1007, 1009 [2014], lv denied 23 NY3d 961 [2014]).

     Garry, J.P., Egan Jr., Mulvey and Aarons, JJ., concur.
                        -3-                  107026

ORDERED that the order is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
