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PEOPLE v. PITTS

4 N.Y.3d 303 (2005)

828 N.E.2d 67

795 N.Y.S.2d 151

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BERNARD PITTS, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY BARNWELL, Appellant.

Court of Appeals of the State of New York.

Decided February 15, 2005.

Attorney(s) appearing for the Case

Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for appellant in the first above-entitled action.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent in the first above-entitled action.

Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for appellant in the second above-entitled action.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent in the second above-entitled action.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT

G.B. SMITH, J.

These appeals present two questions: (1) does CPL 440.30 (1-a) impose a due diligence requirement, limiting the time by which a defendant must bring a postconviction motion requesting DNA testing and (2) does a defendant who brings such a motion bear the burden of establishing that the specified DNA evidence exists and is available in quantities sufficient to be tested?

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