State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 106239 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

TALIB F. ALSAIFULLAH, Also 

Known as VICTOR DENNIS 

GOREE, Also Known as SALAAM 

GOREE,

Appellant.

________________________________

Calendar Date: June 4, 2015

Before: Garry, J.P., Rose, Devine and Clark, JJ.

__________

Henry C. Meier, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

__________

Garry, J.P.

Appeal from an order of the Supreme Court (Breslin, J.),

entered June 27, 2013 in Albany County, which, among other

things, denied defendant's motion pursuant to CPL 440.30 (1-a)

for the performance of forensic DNA testing on specified

evidence.

In 1986, defendant was charged by indictment with one count

of rape in the first degree alleging that he had sexual

intercourse with a child under age 11. Defendant pleaded guilty

to attempted rape in the first degree and was sentenced to 5 to

15 years in prison. Thereafter, this Court affirmed his
-2- 106239 

conviction on appeal (136 AD2d 774 [1988], lvs denied 71 NY2d

892, 896 [1988]). From 2001 to 2012, defendant made three

separate motions pursuant to CPL article 440 seeking to vacate

the judgment of conviction, and each was denied. In this fourth

such application, defendant seeks appointment of counsel and DNA

testing of certain evidence pursuant to CPL 440.30 (1-a). 

Supreme Court denied the motion. Defendant appeals.

A criminal defendant does not have an unqualified right to

the appointment of counsel in collateral proceedings (see County

Law § 722 [4]; Pennsylvania v Finley, 481 US 551, 555 [1987];

People ex rel. Williams v La Vallee, 19 NY2d 238, 241 [1967]). 

Here, no hearing was required, and defendant had previously

sought DNA testing of the same evidence on two of his prior

applications. We find no abuse of discretion in Supreme Court's

denial of his request for appointed counsel (see People ex rel.

Williams v LaVallee, 19 NY2d at 241; People ex rel. Sanchez v

Hoke, 132 AD2d 861, 862 [1987]; People v Richardson, 159 Misc 2d

167, 172 [Sup Ct, Kings County 1993]). As it does not appear

that defendant provided notice to the County Attorney, as

required, we further find no error in the court's denial of

defendant's request for poor person status (see CPLR 1101 [c];

Sebastiano v State of New York, 92 AD2d 966, 966 [1983]). 

Defendant's challenge to the constitutionality of CPL

440.30 (1-a) is unpreserved, as this argument was not asserted

before Supreme Court (see People v Mays, 54 AD3d 778, 778 [2008],

lv denied 11 NY3d 927 [2009]; People v Schaurer, 32 AD3d 1241,

1241 [2006]). Further, the record lacks any indication that

defendant provided the Attorney General with notice of his

challenge to the constitutionality of the statute (see Executive

Law § 71 [1], [3]; People v Perez, 93 AD3d 1032, 1038-1039

[2012], lvs denied 19 NY3d 1000 [2012]). Accordingly, this

argument is not properly before us.

Rose, Devine and Clark, JJ., concur.
-3- 106239 

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court