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The People of the State of v. Harold J. Humphrey Jr

State of New York Supreme Court, Appellate Division Third Judicial Department


February 9, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
HAROLD J. HUMPHREY JR., APPELLANT.

Appeal from an order of the County Court of Rensselaer County (Czajka, J.), entered October 6, 2009, which, among other things, denied defendant's motion pursuant to CPL 440.30 (1-a) for the performance of forensic DNA testing on specified evidence.

The opinion of the court was delivered by: Mercure, Acting P.J.,

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Peters, Spain, Kavanagh and Stein, JJ.

Defendant was convicted of three counts of rape in the second degree and his conviction was upheld on appeal (30 AD3d 766 [2006], lv denied 7 NY3d 813 [2006]). He subsequently moved pursuant to CPL 440.30 (1-a) seeking to have DNA evidence collected from the victim produced for comparison with his own DNA. As part of the motion, he also sought to have his conviction vacated based upon the alleged denial of his constitutional right to confront witnesses. County Court denied the motion and defendant appeals.

Appellate counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no non-frivolous issues to be raised on appeal. Based upon our review of the record, counsel's brief and defendant's pro se submission, we agree (see People v Pugh, 288 AD2d 634 [2001]). Therefore, the judgment is affirmed and counsel's request for leave to withdraw is granted (see People v Stokes, 95 NY2d 633 [2001]; People v Cruwys, 113 AD2d 979, 980 [1985], lv denied 67 NY2d 650 [1986]).

Peters, Spain, Kavanagh and Stein, JJ., concur.

ORDERED that the order is affirmed, and application to be relieved of assignment granted.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120209

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