
    The People of the State of New York, Respondent, v Evaristo Jardin, Appellant.
    [628 NYS2d 275]
   Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered April 13, 1992, convicting defendant, after jury trial, of rape in the first degree, and sentencing him, as a second violent felony offender, to a term of 121/2 to 25 years, unanimously affirmed.

The court did not commit error in denying defendant a hearing on whether the People were negligent in collecting or preserving vaginal swabs in which sperm was found for DNA testing, and in prohibiting cross-examination of the People’s experts with respect to DNA testing, since identity was not an issue, defendant having testified to consensual sexual contact not involving intercourse, and the complainant did not testify that defendant had ejaculated but had achieved penetration just before the arrival of the police. DNA testing was therefore irrelevant to any issue in the case.

The sentence was not excessive in light of defendant’s prior conviction for attempted murder and manslaughter, and his lack of remorse for the instant crime. Defendant’s application to set aside the $150 mandatory surcharge was premature (People v Wilkes, 162 AD2d 303, lv denied 76 NY2d 897). Concur—Rosenberger, J. P., Wallach, Rubin and Mazzarelli, JJ.  