Dabbs v. Vergari

*846OPINION OF THE COURT

Nicholas Colabella, J.

In a proceeding pursuant to CPLR article 78, petitioner seeks to compel the respondent District Attorney to permit DNA testing of physical evidence presented at the trial of his criminal action in which he was convicted for rape in the first degree (indictment No. 81-367). The judgment of conviction was affirmed (see, People v Dabbs, 141 AD2d 664) and petitioner is presently serving 12 Vi to 25 years. Petitioner’s discovery request is made as a prelude to a possible motion to vacate the conviction pursuant to CPL article 440 based on newly discovered…