                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 5, 2017                    107632
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MARK BLOND JR.,
                    Appellant.
________________________________


Calendar Date:    November 18, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                              __________


     G. Scott Walling, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Tracey A.
Brunecz of counsel), for respondent.

                              __________


Devine, J.

      Appeal from an order of the County Court of Schenectady
County (Loyola, J.), entered April 15, 2015, which denied
defendant's motion pursuant to CPL 440.30 (1-a) for the
performance of forensic DNA testing on specified evidence.

      Defendant was convicted by a jury of offenses stemming from
a plethora of criminal conduct that included, as is relevant
here, his sexually assaulting an underage victim on multiple
occasions (96 AD3d 1149 [2012], lv denied 19 NY3d 1101 [2012]).
He was sentenced to a lengthy aggregate term of imprisonment and
the conviction was upheld on appeal (id.). In 2014, defendant
filed a pro se motion pursuant to CPL 440.30 (1-a) and argued
that samples from the victim's blue jeans and T-shirt, as well as
a sex toy that defendant used to violate the victim and other
                              -2-                107632

items collected from his residence, should be subjected to DNA
testing. County Court denied the motion, and defendant now
appeals.

      We affirm. In order to succeed on his motion, defendant
was obliged to "demonstrate that there [was] a reasonable
probability that the verdict would have been more favorable to
him if the testing he [sought] had been conducted" (People v
Dickson, 103 AD3d 989, 990 [2013], lv denied 21 NY3d 1003 [2013];
see CPL 440.30 [1-a] [a]). A number of the items referenced by
defendant have already been subjected to DNA testing and the
results, which were entered into evidence at trial, were not
helpful to his defense. Semen containing sperm matching the DNA
profile of defendant, as well as other material consistent with
the victim's DNA, was found on the jeans along with genetic
material from two unknown individuals. Investigators further
recovered DNA evidence from the sex toy – which belonged to
defendant's wife – that was consistent with the DNA of defendant,
the victim and an unknown donor. The T-shirt yielded nothing of
relevance, with genetic material on it originating from an
unknown female and at least one additional donor.

      Defendant sought additional testing of those items, as well
as the initial testing of others, in order to identify the
unknown donors of genetic material. He suggested that the
victim's account of events was incredible, asserting that the
prior DNA test results were the result of the victim's clothing
being intermingled with other dirty clothes in a hamper and her
sexual activity with others. Defendant had unsuccessfully
advanced those claims at trial, however, and the motion papers
provided nothing beyond base speculation as to how additional DNA
testing would render them more believable. Thus, County Court
properly denied the motion without a hearing (see People v Swift,
108 AD3d 1060, 1061-1062 [2013], lv denied 21 NY3d 1077 [2013];
People v Brown, 36 AD3d 961, 961-962 [2007], lvs denied 8 NY3d
919, 920 [2007]).

     Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.
                        -3-                  107632

ORDERED that the order is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
