NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
September 22, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAVID GARCIA, DEFENDANT-APPELLANT.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about August 8, 2008, which, to the extent appealed from, denied an evidentiary hearing on defendant's CPL 440.30(1-a) motion for DNA testing, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Andrias, Catterson, Acosta, Abdus-Salaam, JJ.
The People presented detailed affidavits by the detectives and the prosecutor, based on personal knowledge, setting forth their diligent but unsuccessful efforts to locate certain items recovered in 1995 from the scene of a homicide. This satisfied the People's burden to show that the evidence on which forensic DNA testing was to be performed could no longer be located and was thus no longer available for testing (see People v Pitts, 4 NY3d 303, 311-312 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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