Decided and Entered:July 16, 2026

CR-24-0805

Calendar Date: May 28, 2026

Before: Garry, P.J., Fisher, Mackey, Corcoran And Ryba, JJ.

[*1]

Garry, P.J.

Appeal from that part of an order of the Supreme Court (Gerald Connolly, J.), entered January 2, 2024 in Rensselaer County, which denied defendant's motion pursuant to CPL 440.30 (1-a) for the performance of forensic DNA testing on specified evidence.

In January 2002, Sam Holley — a known gang member and crack cocaine dealer — and his girlfriend, Arica Schneider, were found fatally stabbed in the living room of their apartment. Each victim's body had at least 30 stab wounds, inflicted by household kitchen knives recovered from throughout the apartment, and extensive blunt force trauma with few or no defensive wounds. There was also evidence to suggest that Schneider was tortured at some point prior to her death. Signs of forced entry were attributed to Holley's brother, who admitted that he broke into the apartment when he had not heard from his brother for days and stole thousands of dollars before contacting the authorities. The State Police laboratory was able to generate a forensic DNA profile of a potential suspect from a bloodstain found on a sheet on the victims' bed, but the lab was unable to fully identify, or thus meaningfully compare, a multitude of mixed-source DNA profiles generated from other evidence collected from the crime scene due to issues with the quantity and/or quality of the genetic material that was able to be extracted. The "John Doe" DNA profile was uploaded to available databases but returned no hits. The murder investigation continued for many years, and somewhere between 50 and 100 suspects were considered. Ultimately, two reputed members of a group dubbed by the FBI as the "Stick Men" — for their modus operandi of armed robberies of local drug dealers — were indicted for the murders. Like the many other suspects, the DNA samples obtained from the two Stick Men were inconsistent with the John Doe profile, but other evidence showed that they had been actively surveilling Holley and were at or near the victims' residence around the time of the murders.

Days before that trial was to commence, a periodic automated database search identified defendant as the source of the John Doe profile, his DNA having only recently been added to the state DNA databank. Upon investigating defendant further, police learned that he was a drug user and had once served as a drug runner for Holley. A palm print in blood found on the living room wall was also determined to be consistent with defendant. Defendant admitted to knowing the victims but was not forthcoming with law enforcement about having been at the crime scene. When eventually advised of the foregoing forensic evidence against him, defendant repeatedly expressed shock and bewilderment and asked, among other things, "[w]hat kind of trouble could a person get into if he witnessed a murder and never reported it?" Upon realizing that he was going to be arrested for the murders, defendant indicated that he had a "very simple" explanation for the presence of his DNA but would give that [*2]explanation in court so that he would "never ha[ve] to worry about this again." Meanwhile, the indictment against the two reputed Stick Men was dismissed, without prejudice, and, in 2010, defendant was charged with one count of murder in the first degree, two counts of murder in the second degree and one count of burglary in the first degree.

A three-week jury trial ensued. The People's case was largely circumstantial, and they were candid about the fact that they had no motive to offer as to why defendant would have committed the brutal murders. Nonetheless, from the very start of trial and through to the end, the People maintained that "science [had] solved th[e] case." Defendant testified in his defense and provided the following account. On the evening before the murders, defendant was snowboarding at a local gorge with his seven-year-old son during scheduled visitation when he injured his hand, sustaining abrasions and a jammed finger. When driving the son home, defendant stopped at Holley's residence, as was customary for him on visitation days because of Holley's proximity to the son's residence. Upon defendant mentioning that he had the following day off from work for his mother's 50th birthday, Holley asked defendant for a ride in the morning, and defendant agreed. When defendant arrived at Holley's residence the next morning, he entered through the unlocked front door of the apartment into the kitchen and proceeded into the living room, where he discovered the victims. He shook the victims' blood-covered bodies to see if they were still alive and potentially braced himself against a wall upon realizing that they were not. He then investigated a sound coming from the victims' bedroom, ultimately lifting the mattress with his abraded hand, to discover a cordless house phone wedged between the mattress and boxspring. Defendant then fled the residence and decided not to contact the authorities out of fear that he or his family would become implicated in what he believed to be drug- or gang-related violence. The trial evidence also included contemporaneous medical records confirming that defendant sought treatment for the injury described, and defendant's mother, with whom he was living at the time, corroborated defendant's whereabouts during the approximate time of the murders. The People offered rebuttal evidence calling into question the weather conditions on the day when defendant purportedly took his son snowboarding. After multiple requests for read backs regarding the forensic evidence, the jury found defendant guilty of murder in the first degree and burglary in the first degree. He was later sentenced to life in prison without the possibility of parole.

This Court upheld that conviction upon direct appeal (121 AD3d 1169 [3d Dept 2014], lv denied 24 NY3d 1086 [2014]). Meanwhile, defendant had filed his first CPL article 440 motion, seeking an order vacating his conviction on the grounds of actual innocence and ineffective assistance [*3]of counsel (see CPL 440.10 [1] [g], [h]; see generally 121 AD3d at 1173-1174). Although we agreed that the witnesses who testified in connection with that motion raised some doubt as to defendant's guilt — including a forensic meteorologist undermining the People's rebuttal evidence, a bloodstain analysis expert who concluded that the bedsheet bloodstain was transferred through an existing wound, and a witness who claimed that one of the two Stick Men spoke to him about unreported details of the victims' murders — we upheld the denial of his motion in the absence of clear and convincing evidence establishing his actual innocence, or any demonstrated ineffectiveness of counsel (155 AD3d 1124, 1126 [3d Dept 2017], lv denied 31 NY3d 985 [2018]).

In 2023, defendant filed the instant postconviction motion. As relevant to this appeal, defendant sought an order pursuant to CPL 440.30 (1-a) directing that additional DNA testing be performed on specified items of evidence recovered during the investigation that, upon initial testing, yielded mixed-source DNA profiles containing one or more unidentified contributors that could not be fully interpreted or meaningfully compared due to limitations in DNA testing then available. That evidence included, among other items, a knife blade recovered from underneath Schneider and other samples that, according to defendant, "nobody but the killer could have left." Defendant further sought comparative analysis of that evidence against known alternate suspects and first-time testing of a handgun that evidence logs show was recovered from the crime scene but apparently maintained under a separate case number and therefore not previously subjected to forensic analysis in connection with defendant's prosecution. In support of his application, defendant proffered an affidavit from a forensic scientist excluding defendant as a contributor to those mixed-source profiles, largely in conflict with the trial testimony concerning same, and further asserting that advances in DNA science since the original testing, including expanded loci analysis, probabilistic genotyping and enhanced low-template testing methodologies, warrant reexamination of the evidence. Supreme Court denied the motion, concluding, in pertinent part, that CPL 440.30 (1-a) does not authorize "retesting" of evidence previously subjected to DNA analysis and that the handgun had no apparent evidentiary significance. Defendant appeals as of right from that part of the court's order denying CPL 440.30 (1-a) relief (see CPL 450.10 [5]).

The central dispute on this appeal is whether CPL 440.30 (1-a) authorizes the sort of testing that defendant seeks. The existing appellate authority provides only limited guidance. Although our Sister Departments have generally rejected requests for DNA "retesting," those cases have addressed the issue summarily (see e.g. People v Jones, 307 AD2d 721, 722 [4th Dept 2003], lv denied 1 NY3d 574 [2003]) and thereafter rely upon one another[*4], without extensive analysis of the statutory text or legislative history or consideration of the evolving nature of forensic DNA science (see e.g. People v Vega, 239 AD3d 423, 423 [1st Dept 2025], lv denied 44 NY3d 1014 [2025]; People v Dorcinvil, 175 AD3d 1421, 1422 [2d Dept 2019], lv denied 34 NY3d 1077 [2019]; People v Reed, 129 AD3d 1508, 1508 [4th Dept 2015]; but see People v Workman, 72 AD3d 1640, 1640-1641 [4th Dept 2010], lv denied 15 NY3d 925 [2010]; People v Keene, 4 AD3d 536, 537 [2d Dept 2004]). Conversely, in People v West (41 AD3d 884 [3d Dept 2007]), this Court remitted for further proceedings where the defendant sought additional DNA testing in light of advances in forensic methodology, although our decision also did not expressly analyze whether CPL 440.30 (1-a) authorizes renewed or additional testing as a categorical matter (id. at 884-885; see also People v Blond, 146 AD3d 1033, 1034 [3d Dept 2017], lv denied 28 NY3d 1182 [2017]; but see People v Thibeault, 244 AD3d 1320, 1323 [3d Dept 2025], lv denied 45 NY3d 974 [2026]). Thus, while the existing case law reflects differing approaches, it does not appear that the precise statutory question presented here has been comprehensively examined.

CPL 440.30 (1-a) provides that, "[w]here the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ('DNA') was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant" (CPL 440.30 [1-a] [a] [1]). Defendant argues that this plain language does not support the categorial limitation to previously untested evidence imposed by Supreme Court, and the other Departments. The People maintain that such implicit limitation is clear from the Legislature's use of the past-perfect phrase "if a DNA test had been conducted" (CPL 440.30 [1-a] [a] [1] [emphasis added]), which, in their view, presupposes the absence of prior DNA testing categorically. At oral argument, the further argument was made that "a DNA test" reflects the intent to limit the statute to a single forensic examination of any item of evidence (CPL 440.30 [1-a] [a] [1] [emphasis added]). We are unpersuaded by these grammatical inferences.

CPL 440.30 (1-a) is, by its nature, a postconviction statute, requiring courts to engage in a retrospective hypothetical inquiry concerning whether evidence, had it been available and admitted at trial, could have affected the verdict. The statute's backward-looking phrasing is thus at least as consistent with the procedural posture of the inquiry itself as with an affirmative intent to prohibit [*5]relief with respect to evidence that had previously been subjected to some form of DNA testing. Similarly, the singular article/noun argument ignores the general principle of construction that words in the singular include the plural, and plural the singular, unless otherwise indicated (see General Construction Law § 35; People v Mitchell, 38 NY3d 408, 413-414 [2022]). The interpretive question here is what is meant by "a DNA test" and whether different forms of "forensic DNA testing" unavailable or unutilized at the time of initial testing fall within the scope of the statute (CPL 440.30 [1-a] [a] [1]). The statutory text does not expressly resolve that issue, and we accordingly turn to the legislative history.

The history of CPL 440.30 (1-a) counsels against the rigid construction employed by Supreme Court. Subdivision 1-a was originally enacted in 1994 as part of broader legislation establishing DNA testing procedures, including the state DNA Identification Index, or DNA databank, at a time when the science remained comparatively novel and was still rapidly evolving (see L 1994, ch 737, § 2; Governor's Approval Mem, Bill Jacket, L 1994, ch 737 at 5; see generally Matter of Stevens v New York State Div. of Criminal Justice Servs., 40 NY3d 505, 510-511 [2023]). As initially enacted, CPL 440.30 (1-a) was principally directed toward convictions predating the widespread use of DNA testing and required testing where requested by defendants convicted prior to the statute's effective date upon the specified showing (see L 1994, ch 737, § 3). The provision was thus a remedial mechanism intended to harness emerging technology in the service of justice, and accuracy, anticipating that judgments of conviction would be set aside based upon such new evidence (see generally CPL 440.10 [1] [g]).^FN1

Subsequent legislative enactments repeatedly reinforced "the vital importance and potential exonerating power of DNA testing" (People v Pitts, 4 NY3d 303, 310 [2005]). In 2004, the Legislature amended CPL 440.30 (1-a) to allow any defendant, regardless of conviction date, to move for a postconviction forensic DNA testing order (see L 2004, ch 138, § 2; People v Pitts, 4 NY3d at 310). The Legislature contemporaneously expanded the DNA databank and empowered courts to direct officials to identify the location of DNA evidence that may exonerate innocent persons (see L 2004, ch 138, § 2; People v Pitts, 4 NY3d at 310). In connection with the 2004 amendments, the Governor's Program Bill memorandum discussed several cases illustrating the value of the expanded requirements, including a 1991 case in which "advances in DNA science enabled law enforcement authorities to conduct a new test on the evidence" after "limitations of DNA science at the time of trial" had prevented "extract[ion]" of a usable DNA profile, ultimately proving that the defendant "had not committed the crime for which he was incarcerated" (Governor's Program Bill Mem, Bill Jacket, L 2004, ch 138 at 14). [*6]This memorandum, along with the legislative materials more generally, again emphasized "the power of the databank" to not only "implicate the guilty" but "exonerate the innocent" (Governor's Program Bill Mem, Bill Jacket, L 2004, ch 138 at 14). Such materials strongly suggest that the Legislature understood advances in DNA science to warrant renewed or additional forensic examination of previously analyzed evidence in appropriate circumstances and did not regard CPL 440.30 (1-a) as categorically limited to evidence that had never undergone any form of forensic DNA testing.

The Legislature continued to broaden postconviction DNA procedures in 2012 (see L 2012, ch 19, §§ 1, 2), with continued emphasis on "enhanc[ing] the protections afforded defendants to demonstrate their actual innocence" (Senate Introducer's Mem in Support, Bill Jacket, L 2012, ch 19 at 10, 12) and furnishing evidence "crucial to exonerating those who have been unjustly convicted" (Governor's Approval Mem, Bill Jacket, L 2012, ch 19 at 5). Based upon recommendations of the New York State Justice Task Force — convened to eradicate systemic and individual harms caused by wrongful convictions — the 2012 amendments significantly expanded CPL 440.30, extending DNA testing remedies to certain defendants convicted upon guilty pleas (see CPL 440.30 [1-a] [a] [2]), creating additional discovery mechanisms designed to assist defendants in developing their postconviction claims (see CPL 440.30 [1-a] [b]) and authorizing "keyboard searches" or similar search methods to compare probative biological material gathered in connection with the investigation or prosecution of a defendant against profiles maintained within the DNA databank (CPL 440.30 [1-a] [c]; see New York State Justice Task Force, Recommendations Regarding Post-Conviction Access to DNA Testing and Databank Comparisons [Jan. 2012], available at https://www.nyjusticetaskforce.org/

DNAAccessAndDatabankComparisons.pdf [last accessed July 13, 2026]).

The 2012 amendments are key to our analysis. In extending postconviction DNA remedies to certain pleas, the Legislature expressly directed courts to consider whether the defendant unjustifiably failed to request testing prior to the entry of the plea. Thus, when confronted with circumstances patently implicating concerns of finality, the Legislature elected to impose a case-specific inquiry rather than a categorical prohibition. This further suggests that the Legislature did not view prior opportunities for testing as automatically dispositive of a defendant's entitlement to seek postconviction forensic relief. The authorization of keyboard searches is also particularly instructive as that relief necessarily contemplates renewed forensic engagement with previously tested evidence. The 2012 amendments also notably added CPL 440.10 (1) (g-1), creating an independent DNA-specific postconviction mechanism with a standard different from that applied to motions to vacate based on newly discovered [*7]evidence (see People v Pitts, 4 NY3d at 310). It must be noted that the Justice Task Force had also recommended language making "explicit" the right to request "retesting of DNA evidence based on new technology" "capable of producing more conclusive exculpatory results" (Justice Task Force at 5).^FN2 The Legislature ultimately did not adopt that recommendation, but, in the absence of any indication as to why, we do not view that legislative inaction as dispositive (see generally Boreali v Axelrod, 71 NY2d 1, 13 [1987]). It is at least equally true that the Legislature, unquestionably aware of the possibility of motions for forensic DNA "retesting" in light of the Justice Task Force's recommendation, chose not to make any alleged categorical prohibition explicit.

Collectively, these enactments reflect a legislative understanding that forensic DNA testing may continue to evolve after trial and that CPL 440.30 (1-a) functions as an innocence-oriented remedial statute designed to accommodate meaningful advances in the science. Had the Legislature understood the statute to categorically prohibit any renewed forensic analysis once some form of DNA testing had previously occurred, it is difficult to reconcile that restrictive understanding with the Legislature's repeated expansion of postconviction DNA procedures in the service of demonstrating innocence.

The People's finality concerns are not insignificant. CPL article 440 reflects the Legislature's careful balancing of postconviction review against the substantial public interest in the finality of criminal judgments (see People v Tiger, 32 NY3d 91, 98-102 [2018]; People v Jackson, 78 NY2d 638, 646-647 [1991]). With respect to applications for postconviction forensic DNA testing, the Legislature addressed those concerns through procedural and substantive gatekeeping measures, rather than any express categorical prohibition on renewed or additional testing. CPL 440.30 (1-a) imposes meaningful thresholds requiring defendants to demonstrate, for example, that the requested testing bears materially upon the validity of the verdict (see CPL 440.30 [1-a] [a] [1]) or their actual innocence (see CPL 440.30 [1-a] [a] [2]), and, in certain contexts, that the defendant both committed a qualifying offense (see CPL 440.30 [1-a] [a] [2] [A], [B]) and acted diligently in pursuing relief (see CPL 440.30 [1-a] [a] [2] [i], [ii]; see generally People v Tiger, 32 NY3d at 103; People v Brown, 199 AD3d 697, 699 [2d Dept 2021], lv denied 37 NY3d 1159 [2022]; People v Chaney, 160 AD3d 1281, 1286 [3d Dept 2018], lv denied 31 NY3d 1146 [2018]). These limitations substantially mitigate the concern that every incremental advancement in forensic science will generate endless collateral relitigation. It also warrants emphasis that, as with all CPL article 440 motions, the defendant carries the initial burden of coming forward with sworn allegations to substantiate the facts essential to the relief requested (see CPL 440.30 [1] [a];[*8]People v Hartle, 40 NY3d 39, 44 [2023], cert denied ___ US ___, 144 S Ct 383 [2023]; People v Ramos, 142 AD3d 737, 738 [3d Dept 2016], lv denied 28 NY3d 1074 [2016]), and courts remain empowered to summarily dismiss CPL 440.30 (1-a) motions (see CPL 440.30 [4]). A construction of the statute that allows for renewed or additional forensic DNA testing may also further finality interests. Apart from exonerations, definitive "retesting" works to put an end to frivolous claims of innocence.^FN3

To be clear, we do not construe CPL 440.30 (1-a) as authorizing endless repetitive retesting whenever forensic methodologies marginally evolve, and the statute does not contemplate serial or cumulative testing unsupported by a meaningful showing of changed scientific capability. Rather, where a defendant demonstrates that materially advanced forensic techniques unavailable at the time of prior testing may now yield materially different evidentiary results bearing upon the applicable probability inquiry, renewed or additional testing may fall within the meaning of "a DNA test" not previously conducted. This interpretation accords with both the remedial purpose of the statute and the Legislature's evident recognition that major advances in DNA science can fundamentally alter the probative value of previously examined evidence.^FN4

We further conclude that defendant's submissions were sufficient to preclude summary denial of his motion (compare CPL 440.30 [4]). Defendant proffered the affidavit of Jason Simser, a forensic scientist employed by a nationally and internationally accredited forensic laboratory, who averred that he has participated in thousands of criminal investigations involving serology, DNA analysis, crime scene processing and bloodstain pattern interpretation. In connection with postconviction consulting work, Simser reviewed the DNA testing performed by the State Police laboratory between 2002 and 2011 and concluded that multiple items of biological evidence recovered from the crime scene yielded mixed-source DNA profiles containing unidentified contributors that were either not fully interpretable or could not be meaningfully compared using the testing methodologies available at the time due to limited allelic information. This limitation was not merely theoretical; trial testimony reflects that, although the DNA from the bedsheet was compared to the profiles of the two previously indicted suspects, the unidentified DNA recovered from a significant number of other crime scene evidence could not be meaningfully compared to them — or the 50 to 100 other suspects considered throughout the course of the investigation — because of an insufficient quantity of alleles.

Simser then detailed substantial developments in forensic DNA science since the original testing was performed, some as early as 2002. Those developments include expanded STR profiling systems increasing the number of loci capable of analysis from 13 to 24, reduced sample-input requirements[*9], improved ability to analyze degraded or inhibited samples, and enhanced sensitivity permitting more complete recovery of genetic information from low-template samples. Simser also explained that DNA interpretation methodologies have evolved from comparatively simplistic binary or heuristic approaches to probabilistic genotyping systems utilizing biological modeling and statistical analysis to extract and interpret genetic information from complex mixtures in ways not previously possible. Additionally, Simser averred that modern testing methodologies are capable of amplifying trace male DNA in samples containing overwhelming quantities of female DNA. According to Simser, these advances may now permit the resolution and comparison of previously unresolved contributor profiles recovered from the crime scene.

Simser then set forth a nonexhaustive list of specific evidence from that which he examined that would particularly benefit from such renewed or additional analysis, including other bloodstained cuttings from the victims' bedsheet; swabs from the bloodstained carpet beneath Schneider; swabs taken from a bloodstained knife blade also recovered from beneath Schneider; swabs collected from a bloody palm print on Schneider's back; and any evidence with indications of male DNA where the major contributor was determined to be female, such as all of the samples collected from Schneider's body and clothing.

The handgun presents a separate point. Unlike the foregoing items, the record suggests that a handgun reportedly recovered from the victims' apartment was not previously subjected to DNA testing in connection with defendant's prosecution. We are not persuaded that the handgun may be disregarded as categorically immaterial merely because the victims died from stab wounds rather than gunshot injuries. The record reflects that the previously indicted alternate suspects were allegedly associated with robberies of drug dealers involving the use of firearms, and defendant's theory has consistently included that the murders were connected to such criminal activity. Under these circumstances, including the extensive evidence with unidentified DNA contributors, the potential forensic significance of a firearm recovered from within the apartment should not have been dismissed out of hand.

Defendant does not seek retesting of the single-source DNA profile recovered from the bedsheet that ultimately matched his DNA and formed a substantial component of the People's proof at trial. Rather, the present application principally concerns mixed-source samples that contained unresolved contributors, comparative analysis that was not previously performed against known alternate suspects and first-time testing. Viewed against the circumstantial nature of the People's proof, the absence of an identified motive for defendant to commit the subject crimes or any evidence tying him to a murder weapon, and the prior indictment of two alternate suspects and their well-known [*10]modus operandi, defendant's submissions are more than sufficient to warrant consideration under the proper legal framework (see People v Flax, 117 AD3d 1582, 1583-1584 [4th Dept 2014]; People v Bush, 90 AD3d 945, 945-946 [2d Dept 2011]; People v West, 41 AD3d at 884-885; compare People v Letizia, 141 AD3d 1129, 1130 [4th Dept 2016], lv denied 28 NY3d 1073 [2016]; People v Reed, 129 AD3d at 1509; People v Swift, 108 AD3d 1060, 1061-1062 [4th Dept 2013], lv denied 21 NY3d 1077 [2013]; People v Concepcion, 104 AD3d 442, 443 [1st Dept 2013], lv denied 21 NY3d 1003 [2013]). Accordingly, the matter must be remitted to Supreme Court for further proceedings, including a determination as to whether a hearing is required (see CPL 440.30 [3], [5]; People v Pitts, 4 NY3d at 312; compare People v Williams, 130 AD3d 949, 950 [2d Dept 2015], lv denied 26 NY3d 907 [2015]). We do not pass upon the ultimate persuasiveness of Simser's opinion or whether the specified evidence exists or is available in suitable quantities to make testing feasible (see People v Robinson, 147 AD3d 784, 786 [2d Dept 2017]; People v Flax, 117 AD3d at 1584; People v West, 41 AD3d at 885).

Fisher, Mackey, Corcoran and Ryba, JJ., concur.

ORDERED that the order is modified, on the law, by reversing so much thereof as denied that portion of defendant's motion pursuant to CPL 440.30 (1-a); matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.