| People v Jones |
| 2011 NY Slip Op 09401 [90 AD3d 1516] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Timothy Jones, 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 by the People, we reversed the order that, inter alia, granted defendant's motion to setaside the verdict pursuant to CPL 330.30 (1), and we reinstated the verdict and remitted thematter to Supreme Court for sentencing with respect to defendant and his codefendant, JonathanBenton (People v Benton, 78 AD3d1545 [2010], lv denied 16 NY3d 828 [2011]). As noted in our prior reversal,defendant's contention that the People committed a Brady violation by failing to disclosea report containing the results of DNA analysis of a broken beer bottle allegedly used in therobbery (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 forthin the CPL 330.30 motions" at the time of trial (Benton, 78 AD3d at 1546; 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]). Defendant again raises that contention on thisappeal, despite the lack of preservation, and we conclude in any event that his contention iswithout merit. As we noted on the appeal of the codefendant, the DNA report was notexculpatory in nature (People vBenton, 87 AD3d 1304 [2011]), and we thus conclude that it did not constituteBrady material (see People v Zaker, 305 AD2d 978 [2003], lv denied 100NY2d 601 [2003], 2 NY3d 809 [2004]; People v Martinez, 298 AD2d 897, 898 [2002],lv denied 98 NY2d 769 [2002], cert denied 538 US 963 [2003], reh denied539 US 911 [2003]). Defendant also failed to preserve for our review his contentionthat the prosecutor violated his right to discovery pursuant to CPL 240.20 inasmuch as he did notobject to the prosecutor's failure to disclose the DNA report when defendant was made aware ofits existence during the trial (see Peoplev Delatorres, 34 AD3d 1343, 1344 [2006], lv denied 8 NY3d 921 [2007]). Inany event, reversal based on that violation would not be required inasmuch as "defendant failedto establish that he was 'substantially prejudice[d]' " by the belated disclosure of the DNA [*2]report (id.; see generally People v Davis, 52 AD3d 1205, 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, Lindley and Sconiers, JJ.