Calendar Date: March 27, 2018Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.__________Brian M. Quinn, Albany, for appellant.Karen Heggen, District Attorney, Ballston Spa (Gordon W.Eddy of counsel), for respondent.__________Devine, J.Appeal from that part of an order of the County Court ofSaratoga County (Sypniewski, J.), entered October 16, 2015, whichdenied defendant’s motion pursuant to CPL 440.30 (1-a) for theperformance of forensic DNA testing on specified evidence.Defendant was convicted by a jury of multiple offensesafter he forced an underage victim to engage in various forms ofsexual contact, and the judgment of conviction was upheld onappeal (43 AD3d 553 [2007], lv denied 9 NY3d 965 [2007]). In2015, he moved pro se to vacate the judgment of convictionpursuant to CPL 440.10 and for DNA testing of a buccal swab takenfrom the victim’s thigh pursuant to CPL 440.30 (1-a). CountyCourt denied the motion without a hearing, prompting defendant’sappeal. Defendant was denied permission to appeal from that partof the order denying vacatur of the judgment (see CPL 450.15[1]), leaving the denial of relief pursuant to CPL 440.30 as theonly issue before us.We affirm. To succeed in his motion for additional DNAtesting, defendant was obliged “to show that ‘there exists areasonable probability that the verdict would have been morefavorable to [him]‘ if the requested testing had been carried outand the results admitted at trial” (People v Sposito, 30 NY3d1110, 1111 [2018], quoting CPL 440.30 [1-a] [a] [1]; see People vBlond, 146 AD3d 1033, 1034 [2017], lv denied 28 NY3d 1182[2017]). Defendant attacked the credibility of the victim attrial by noting inconsistencies between her trial testimony andher pretrial statements. He now speculates that testing of thethigh swab might have revealed genetic material that was not hisown that could, in turn, have been used to impeach the victim’stestimony that he was the perpetrator.The victim knew defendant and, while her recollection oftheir encounter had varied somewhat over time, she consistentlyidentified him as her assailant (43 AD3d at 554-555). Hertestimony was corroborated by an array of proof that includeditems recovered from the scene, physical injuries to her anddefendant explained by her account, and DNA testing of seminalfluid recovered from her underwear and her vagina that matchedthe DNA profile of defendant. There was therefore “overwhelmingevidence” that defendant was the assailant (id. at 555) and noreasonable probability exists that the victim’s identificationtestimony “would . . . have been impeached or controverted byevidence that the DNA of another individual was discovered” onthe thigh swab (People v Swift, 108 AD3d 1060, 1062 [2013], lvdenied 21 NY3d 1077 [2013]; see People v Blond, 146 AD3d at 1034;People v Brown, 36 AD3d 961, 962 [2007], lvs denied 8 NY3d 919,920 [2007]).As a final matter, we fail to perceive any scenario inwhich testing on the thigh swab could support defendant’slongstanding, previously rejected belief “that the police andmedical professionals provided perjured testimony and otherwisecommitted misconduct” (43 AD3d at 556).Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.ORDERED that the order is affirmed.ENTER:Robert D. MaybergerClerk of the Court
