Opinion
2011-09-30
The PEOPLE of the State of New York, Respondent,v.Jonathan BENTON, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered January 7, 2011. The judgment convicted defendant, upon a nonjury verdict, of robbery in the second degree (two counts).Daniel P. Grasso, Buffalo, for defendant–appellant.Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts of robbery in the second degree (Penal Law § 160.10[1], [2][a] ). On a prior appeal, we reversed the order that, inter alia, granted defendant's motion to set aside the verdict pursuant to CPL 330.30(1), and we reinstated the verdict ( People v. Benton, 78 A.D.3d 1545, 910 N.Y.S.2d 795, lv. denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180). Defendant failed to preserve for our review his contention that the People committed a Brady violation by failing to disclose a report (hereafter, DNA report) containing the results of DNA analysis of a broken beer bottle allegedly used in the robbery ( see People v. Caswell, 56 A.D.3d 1300, 1303, 867 N.Y.S.2d 638, lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442, 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 cert. denied ––– U.S. ––––, 129 S.Ct. 2775, 174 L.Ed.2d 278; People v. Thomas, 8 A.D.3d 303, 777 N.Y.S.2d 673, lv. denied 3 N.Y.3d 671, 682, 784 N.Y.S.2d 9, 20, 817 N.E.2d 827, 838). In any event, that contention is without merit because the DNA report was not exculpatory in nature ( see People v. Wright, 43 A.D.3d 1359, 1360, 843 N.Y.S.2d 482, lv. denied 9 N.Y.3d 1011, 850 N.Y.S.2d 399, 880 N.E.2d 885; People v. Scott, 32 A.D.3d 1178, 1179, 821 N.Y.S.2d 339, lv. denied 8 N.Y.3d 884, 832 N.Y.S.2d 497, 864 N.E.2d 627; see also People v. Forbes, 190 A.D.2d 1005, 593 N.Y.S.2d 912, lv. denied 81 N.Y.2d 970, 598 N.Y.S.2d 771, 615 N.E.2d 228). Defendant also failed to preserve for our review his contention that the prosecutor violated his right to discovery pursuant to CPL 240.20 inasmuch as he did not object to the prosecutor's failure to disclose the DNA report when defendant was made aware of its existence during the trial ( see People v. Delatorres, 34 A.D.3d 1343, 1344, 825 N.Y.S.2d 614, lv. denied 8 N.Y.3d 921, 834 N.Y.S.2d 511, 866 N.E.2d 457). In any event, reversal based on that violation would not be required inasmuch as “defendant failed to establish that he was ‘substantially prejudice[d]’ ” by the belated disclosure of the DNA report ( id.; see generally People v. Davis, 52 A.D.3d 1205, 1206–1207, 859 N.Y.S.2d 804).
Finally, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50(5).
CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.