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In a victory for convicts seeking to prove their innocence through DNA testing, the New York Court of Appeals said Tuesday there is no time bar to bringing a post-conviction DNA motion and — critically — that it is not the defendant’s burden to establish that such evidence exists. The court unanimously overturned the Appellate Division, 4th Department, and gave hope to convicts who claim they were wrongly convicted. It specifically rejected the contention that Criminal Procedure Law 440.30 (1-a), which provides for post-conviction DNA testing, imposes a due diligence requirement on the defendant. “To the contrary, it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing,” Judge George Bundy Smith wrote for the court in People v. Pitts, 9, and People v. Barnwell, 10. The common issues in the appeals were whether there is a time limit in making a CPL 440.30 (1-a) motion and whether a defendant seeking DNA testing must make a threshold showing that potential DNA evidence exists and that it exists in quantities sufficient to analyze. Tuesday, the Court of Appeals said there is no time restriction and the defendant has no burden to show that the evidence he or she seeks to test still exists. “A defendant may move for DNA testing pursuant to CPL 440.30 (1-a) at any time,” Smith wrote. “We further hold that the defendant does not bear the burden of showing that the specified DNA evidence exits and is available in suitable quantities to make testing feasible.” The appeals decided Tuesday involved two men convicted of sex crimes in Monroe County, N.Y. Anthony Barnwell was convicted of first-degree rape in 1987 and sentenced to a 7 to 15-year term. His appeals were exhausted by 1990, four years before Criminal Procedure Law 440.30 (1-a) was enacted to provide for post-conviction DNA testing. In 2000, Barnwell petitioned pro se for DNA testing of the evidence that resulted in his conviction. Bernard Pitts was convicted of first-degree rape in 1995 and sentenced to an 8 1/3 to 25-year term. After exhausting his appeals in 1996, he later moved for DNA testing under CPL 440.30. The Appellate Division, 4th Department held that the prosecution was under no obligation to retain evidence after the direct appeals were exhausted. It also said the defendants were not entitled to a CPL 440.30 hearing unless they could show that the evidence they sought to test was available and sufficient for analysis. Smith granted leave to Pitts and Chief Judge Judith S. Kaye granted leave to Barnwell. Tuesday, the court upheld Pitts’ conviction because “no reasonable probability exists that the verdict would have been more favorable … had the results of DNA testing been introduced at trial.” But in Barnwell’s case, the court remitted the matter to the Supreme Court for an inquiry into whether the DNA evidence in question is available. James G. Eckert of the Monroe County Public Defenders Office in Rochester, N.Y. argued for both defendants. Monroe County Assistant District Attorney Nancy A. Gilligan appeared for the prosecution. Wendy E. Lehmann, chief of appeals for the Monroe County district attorney, said the evidence in both “old” cases has been destroyed, and the prosecution now needs only to show in Barnwell that it does not have the materials Barnwell seeks. The court said nothing about how long prosecutors should retain evidence in concluded cases, or even if they have any obligation to retain such evidence.

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