People v. DEARSTYNE JR.

• Decision Date: 22 May 2003
• Citation: 761 N.Y.S.2d 118,305 A.D.2d 850
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>FRANK W. DEARSTYNE, JR., Appellant.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 850

761 N.Y.S.2d 118

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.FRANK W. DEARSTYNE, JR., Appellant.

Mercure, J.

Decided May 22, 2003.

Cardona, P.J., Crew III, Carpinello and Rose, JJ., concur.

Mercure, J.

In 1991, defendant was convicted of attempted rape in the first degree, aggravated sexual abuse in the first degree, and two counts of endangering the welfare of a child, for which he was sentenced to an indeterminate term of imprisonment of 10 to 30 years. Upon his appeal, this Court remanded the case to County Court for a speedy trial hearing (215 AD2d 864 [1995]) and, thereafter, affirmed defendant's conviction (230 AD2d 953 [1996], lvs denied 89 NY2d 921 [1996], 89 NY2d 1034 [1997]).^[*]

In 1997, defendant moved to, among other things, vacate the judgment under CPL 440.10 and 440.20, and have DNA testing ordered under CPL 440.30 (1-a). Defendant thereafter separately moved to prevent the People from filing a response to his CPL article 440 motion and for an order authorizing funds for expert witnesses and consultants pursuant to County Law § 722-c. By order entered April 27, 1998, County Court denied defendant's motion to preclude the People's response. In a later order entered September 18, 1998, the court denied defendant's County Law § 722-c motion. Defendant appealed from both orders. This Court denied defendant's separate motions for poor person relief on the ground that both orders were not appealable.

Thereafter, in an order entered October 13, 1999, County Court denied defendant's CPL article 440 motion without a hearing. The court noted that many of defendant's submissions were unsworn, defendant failed to demonstrate facts requiring a hearing, many of defendant's contentions could have been raised on his direct appeal and defendant failed to show ineffective assistance of counsel. The court also rejected defendant's request for a DNA test pursuant to CPL 440.30 (1-a). Defendant appeals from that order both by permission and as of right.

In May 2000, defendant again moved, now pro se, to have DNA testing performed pursuant to CPL 440.30 (1-a). On September 22, 2000, County Court denied the motion without a hearing, stating that the issue had previously been decided and, if the court were to consider it, the motion should be denied on the merits. Defendant also appeals from that order.

As an initial matter, we note that the April 27, 1998 order denying defendant's motion to preclude the People's response to his CPL article 440 motion and the September 18, 1998 order denying defendant's County Law § 722-c motion are not appealable (see CPL 450.10). Thus, we sua sponte dismiss defendant's appeals from those orders. Defendant's argument that County Court improperly denied his section 722-c motion, however, is reviewable on his appeal from the denial of his CPL 440.10 motion (see CPL 470.15 [1]).

Defendant argues that County Court erred in denying his motion for funds pursuant to County Law § 722-c, which he sought for purposes of retaining experts to testify about DNA and other medical evidence, false confessions and psychological evidence related to child abuse syndrome. Defendant evidently hoped to establish, through their testimony, that the experts were essential at his trial and that because his attorney failed to call the experts, he received ineffective assistance of counsel. In order to prevail on a motion pursuant to County Law § 722-c, a defendant must show both necessity and, if the compensation sought is in excess of $300, extraordinary circumstances (see People v Dove, 287 AD2d 806, 807 [2001]; People v Lane, 195 AD2d 876, 878 [1993], lv denied 82 NY2d 850 [1993]). Although defendant submitted affidavits—some of which were unsworn— explaining how such expert testimony may have been helpful at trial, he failed to establish that the experts were necessary for him to succeed on his CPL 440.10 motion, how the testimony of some of the experts would show that he received ineffective assistance of counsel or that extraordinary circumstances exist here warranting the expenditure of additional public funds. We conclude that County Court did not abuse its discretion in denying defendant's application.

Defendant also contends that County Court erred in denying his motion to have DNA testing ordered pursuant to CPL 440.30 (1-a). That provision requires courts to grant motions for DNA testing related to convictions occurring before January 1, 1996 only where the movant demonstrates, among other things, "that within `a reasonable probability' the test results would have resulted in a verdict that was more favorable to the defendant had they been admitted in evidence at trial" (People v Pugh, 288 AD2d 634, 634 [2001]; see CPL 440.30 [1-a]).

Here, defendant seeks to have DNA testing performed on material allegedly taken from a victim's underwear. He asserts that if testing showed the presence of semen from another man, a reasonable probability exists that the jury would have acquitted him. Defendant was convicted, however, of attempted rape of this victim and there were no allegations...