Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Timothy JONES, Defendant–Appellant.
Daniel P. Grasso, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
Daniel P. Grasso, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
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 by the People, 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 and remitted the matter to Supreme Court for sentencing with respect to defendant and his codefendant, Jonathan Benton ( 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). As noted in our prior reversal, defendant's contention that the People committed a Brady violation by failing to disclose a report containing the results of DNA analysis of a broken beer bottle allegedly used in the robbery (hereafter, DNA report) is unpreserved for our review inasmuch as defendant did not “object[ ] to the lack of disclosure or otherwise alert[ ] the court to the basis for reversal set forth in the CPL 330.30 motions” at the time of trial ( Benton, 78 A.D.3d at 1546, 910 N.Y.S.2d 795; 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, 784 N.Y.S.2d 9, 817 N.E.2d 827, 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838). Defendant again raises that contention on this appeal, despite the lack of preservation, and we conclude in any event that his contention is without merit. As we noted on the appeal of the codefendant, the DNA report was not exculpatory in nature ( People v. Benton, 87 A.D.3d 1304, 930 N.Y.S.2d 522), and we thus conclude that it did not constitute Brady material ( see People v. Zaker, 305 A.D.2d 978, 759 N.Y.S.2d 281, lv. denied 100 N.Y.2d 601, 766 N.Y.S.2d 177, 798 N.E.2d 361, 2 N.Y.3d 809, 781 N.Y.S.2d 309, 814 N.E.2d 481; People v. Martinez, 298 A.D.2d 897, 898, 749 N.Y.S.2d 118, lv. denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922, cert. denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515, reh. denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126). 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).