In People v. Kellar, 218 A.D.2d 406 [1996], the issue before the appellate court was whether defendant's request for DNA testing pursuant to CPL 440.30 (1-a) should have been granted by County Court, notwithstanding a prior determination on an earlier appeal that defendant's postjudgment motion based upon allegations of "newly discovered evidence" (CPL 440.10 [1] [g] ) had been properly denied because the defendant was fully aware of the presence of sperm and the possibility of DNA testing, and its use was explored by him and his counsel prior to trial. Affirming the denial of the motion for DNA testing, the Court stated: "We do not read CPL 440.30 (1-a) as granting a second opportunity to those who have failed to take advantage of available DNA testing prior to trial . . . [and] conclude that in enacting CPL 440.30 (1-a), the Legislature did not intend to abrogate the 'due diligence' requirement with regard to this one species of newly discovered evidence (CPL 440.10 [1] [g])" (People v. Kellar, 218 A.D.2d 406 [1996] lv dismissed 89 N.Y.2d 948 [1997]).