Opinion
October 3, 2008.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered June 5, 2007. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and criminal possession of a weapon in the fourth degree.
Before: Scudder, P.J., Hurlbutt, Martoche, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). We reject defendant's contention that County Court erred in requiring defendant to provide a DNA sample. Although the People requested the DNA sample after the 45-day statutory period for discovery had elapsed ( see CPL 240.90), we conclude under the circumstances of this case that the motion was properly granted for "good cause shown" before the commencement of the trial ( id.). The People established that the DNA test results from the knife used to stab the victim would result in material and relevant evidence ( see People v Shields, 155 AD2d 978, lv denied 75 NY2d 818), and "the delay itself did not cause defendant any prejudice" ( People v Lewis, 44 AD3d 422, 422-423, lv denied 9 NY3d 1035; see also People v Jenkins, 98 NY2d 280). We also reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). Finally, the sentence is not unduly harsh or severe.