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

147
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 order denied defendant’s
motion, pursuant to CPL 440.30 (1-a), for the performance of forensic
DNA testing on specified evidence.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
a determination in accordance with the following Memorandum:
Defendant appeals from 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 from the
victim’s clothing,” and a washcloth (see generally CPL 450.10 [5]).
Preliminarily, we note that the notice of appeal incorrectly recites
that defendant appeals from a judgment. 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 Mitchell, 93 AD3d 1173, 1173, lv
denied 19 NY3d 999). The order addressed only that part of
defendant’s motion requesting testing on the washcloth, however, and
Supreme Court’s failure to rule on the other parts of defendant’s
motion “ ‘cannot be deemed a denial thereof’ ” (People v Stewart, 111
AD3d 1395, 1396; see People v Santana, 101 AD3d 1664, 1664, lv denied
20 NY3d 1103; see generally People v Concepcion, 17 NY3d 192, 197-
198). We therefore hold the case, reserve decision and remit the
matter to Supreme Court for a determination on the remainder of
defendant’s motion.




Entered:    February 14, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
