| People v Benton |
| 2011 NY Slip Op 06699 [87 AD3d 1304] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JonathanBenton, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
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 robberyin the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict oftwo counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]). On a priorappeal, we reversed the order that, inter alia, granted defendant's motion to set aside the verdictpursuant to CPL 330.30 (1), and we reinstated the verdict (People v Benton, 78 AD3d 1545 [2010], lv denied 16NY3d 828 [2011]). Defendant failed to preserve for our review his contention that the Peoplecommitted 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 AD3d1300, 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied12 NY3d 781 [2009], cert denied 556 US —, 129 S Ct 2775 [2009]; People v Thomas, 8 AD3d 303[2004], lv denied 3 NY3d 671 [2004]). In any event, that contention is without meritbecause the DNA report was not exculpatory in nature (see People v Wright, 43 AD3d 1359, 1360 [2007], lvdenied 9 NY3d 1011 [2007]; Peoplev Scott, 32 AD3d 1178, 1179 [2006], lv denied 8 NY3d 884 [2007]; see alsoPeople v Forbes, 190 AD2d 1005 [1993], lv denied 81 NY2d 970 [1993]). Defendantalso failed to preserve for our review his contention that the prosecutor violated his right todiscovery pursuant to CPL 240.20 inasmuch as he did not object to the prosecutor's failure todisclose the DNA report when defendant was made aware of its existence during the trial (see People v Delatorres, 34 AD3d1343, 1344 [2006], lv denied 8 NY3d 921 [2007]). In any event, reversal based onthat 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 AD3d1205, 1206-1207 [2008]).
Finally, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Centra,J.P., Peradotto, Carni, Green and Gorski, JJ.