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

662
KA 13-01565
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHARLIE MIXON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (M.
William Boller, A.J.), entered May 16, 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).

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

     Memorandum: Defendant appeals from an order insofar as it denied
his motion pursuant to CPL 440.30 (1-a) seeking DNA testing of items
secured in connection with his 1990 conviction of one count of arson
in the first degree and six counts of murder in the second degree
(People v Mixon, 203 AD2d 909, lv denied 84 NY2d 830, reconsideration
denied 84 NY2d 909). We conclude that Supreme Court properly denied
the motion. Defendant failed to establish that if DNA tests had been
conducted on certain items from the crime scene and the results had
been admitted at his trial that “there exists a reasonable probability
that the verdict would have been more favorable to” him (CPL 440.30
[1-a] [a] [1]; see People v Mixon, 30 AD3d 1103, 1103, lv denied 7
NY3d 903).




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