Cleary Gottlieb Steen & Hamilton LLP, New York (Ryan T. Becker of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David M.Cohn of counsel), for respondent.
Weil Gotshal & Manges LLP, New York (Howard B. Comet of counsel), for amicus curiae.
Gonzalez, P.J., Friedman, Moskowitz, DeGrasse, Freedman, JJ.
Order, Supreme Court, New York County (James A. Yates, J.), entered on or about October 19, 2010, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction of the same court (Alfred Kleiman, J.), rendered July 6, 1981, affirmed.
Defendant has not established that the newly discovered DNA evidence "is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [him]" (CPL 440.10[g]). Defendant was convicted of the murder of one person and the rape of another person during a 1980 incident. Thirty years later, mitochondrial DNA testing of 3 of 18 hairs retrieved from a hat left at the scene by the perpetrator, and of fingernail scrapings from the murder victim, indicated that neither the tested hairs nor the fingernail scrapings were defendant's. We find, however, that a new trial would not be warranted even if such evidence were accepted as proof that the hairs and scrapings originated from a person or persons other than defendant.
The sole identifying witness was the rape victim. Although defendant points out a few weaknesses in the People's case (such as the victim's drug use), her lineup and in-court identifications of defendant were unusually strong and reliable. She observed defendant and conversed with him for about 15 minutes under good lighting conditions, at a time when defendant had not yet displayed a weapon and the situation had not yet become stressful. She provided a detailed description that included the condition of defendant's teeth (one tooth, she testified, was "chipped and he had a gap between his teeth"). At the close of the People's case, defendant was directed, over objection, to display his teeth to the jury. Tellingly, defense counsel made no mention of the teeth during his summation, but the prosecutor, in his closing argument, highlighted this point, without objection from the defense . A police report in the record, dated June 2, 1980 (the date of the crime), states that the victim described the perpetrator as having "spaces between teeth [and] one tooth chipped in front."
Given the strength of the evidence, the two portions of the DNA evidence, even when viewed collectively, would not have created the probability of a more favorable verdict. There are multiple explanations for the presence of hairs other than defendant's on the hat found at the scene. Most obviously, the hairs could have belonged to a person other than the perpetrator who wore the hat before the incident. In fact, given that the laboratory that tested the hairs on defendant's behalf noted in its report that the hairs were not all of the same color, and that only 8 of the 18 hairs were curled, there is good reason to believe that the hairs did not all come from the same individual . Moreover, as the People point out, it is not clear from the 1981 laboratory report's ambiguous description of certain hairs (including those tested by defendant) as being from "under [the] hat band" that the hairs came from inside the hat (and, thus, from a person who wore it); indeed, the same report described other hairs (not tested by defendant) as being from "inside" the hat. In this regard, the hat was given to the police after the crimes by a civilian who had handled it. As for the fingernail scrapings, the trial evidence did not establish that the murder victim scratched his assailant, and there were potential alternative sources for the DNA material under his fingernails.
Defendant urges that a hearing was required to resolve the parties' factual disputes concerning the reliability of the mitochondrial DNA evidence. In deciding a CPL 440.10 motion, a hearing to develop additional facts is not "invariably necessary"; rather, CPL 440.30 contemplates that a court will make an initial determination on the written submissions whether the motion can be decided without a hearing (People v Satterfield, 66 N.Y.2d 796, 799 ). Here, we find that even if the reliability of the evidence is assumed, defendant still did not establish a legal basis for ordering a new trial. Accordingly, the factual disputes in this case were not material, and defendant was not prejudiced by the absence of a hearing.
In taking the position that the motion should not have been denied without a hearing, the dissent relies on the People's failure to submit in admissible form their expert analysis impeaching the integrity of the testing procedures performed on the hairs by the commercial laboratory defendant engaged and the conclusiveness of the results of that testing . In so doing, the dissent simply assumes that the results of the testing of the hairs from the hat proffered by defendant, taken at face value, would have "create[d] a probability that... the verdict would have been more favorable to the defendant" had those results been placed in evidence at trial (CPL 440.10[g]). As previously noted, however, the test results, assuming their accuracy for present purposes, prove, at most, only that 3 of the 18 hairs retrieved from the hat that the perpetrator wore while committing the crimes came from an individual other than defendant. Needless to say, even if the testing results are taken at face value (as we must do at this juncture), this is far from conclusively exculpatory evidence.
Contrary to the dissent's deprecation of the rape victim's identification of defendant, this was a very strong eyewitness identification case. The victim interacted with the perpetrator for 15 minutes in a transaction that was initially nonviolent and consensual, and she observed the perpetrator's face at close quarters in broad daylight. Any discrepancies in the victim's descriptions of the perpetrator (for example, concerning his hairstyle or skin tone) were of the kind that ordinarily arise in criminal trials; the defense argued these points to the jury, which found them unpersuasive. Moreover, far from lacking corroboration, the victim's identification of defendant was corroborated by the appearance of his teeth when displayed at trial. Viewing the evidence in the light most favorable to the People, we must infer from the jury's verdict that the appearance of defendant's teeth was consistent with the descriptions the victim gave to the police and in her testimony. 
Given the strength of the evidence against defendant, there is no reason to believe that the results of testing 3 strands of hair (out of 18 retrieved from the hat worn by the perpetrator) would have resulted in a verdict more favorable to defendant had those results been received into evidence at trial . Again, since the source of the hairs could have been anyone who wore or handled the hat before the crimes were committed, or a person who handled the hat thereafter (including the civilian who turned it over to the police), the perpetrator was not necessarily the source of the hairs that were tested (see Steward v Grace, 362 F.Supp.2d 608, 622 [ED Pa 2005] [defendant was not entitled to DNA testing of a hair sample from a jacket worn by the perpetrator during the commission of the crime because "the hair could have ended up on the jacket in numerous ways either before or after the murder"]; People v Smith, 245 A.D.2d 79 [1st Dept 1997] [even if DNA testing would show that semen from a rape kit was not defendant's, that result would not have affected the verdict because the victim testified that she had engaged in intercourse with her boyfriend shortly before the rape and that she did not know whether defendant ejaculated during the rape], lv denied 92 N.Y.2d 86 ). Moreover, to reiterate, 15 of the hairs from the hat were not tested — not due to any objection by the People, which provided all 18 hairs to defendant, but presumably by choice of his counsel — and there is no reason to assume that defendant was not the source of some or all of the untested hairs (s ee Brown v Mississippi, 2011 WL 4386453, *5 [ND Miss 2011] [DNA testing did not exculpate petitioner where testing of several hairs "produced inconclusive results, and many others were not tested at all"]). 
Finally, the dissent overlooks the fact that CPL 440.10(1), by providing that the trial court "may" grant a motion to vacate a conviction based on newly discovered evidence, entrusts the determination of such a motion to the court's discretion (see People v Samandarov, 13 N.Y.3d 433, 436  [Court of Appeals reviews decisions to deny hearings on CPL article 440 motion "for abuse of discretion"]). On this record, we find that ...