| People v Brown |
| 2012 NY Slip Op 01004 [92 AD3d 1216] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AntoineBrown, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedFebruary 24, 2010. The judgment convicted defendant, upon a nonjury verdict, of robbery in thefirst degree, robbery in the second degree and grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]), robbery in the second degree (§160.10 [1]), and grand larceny in the third degree (former § 155.35). Defendant failed topreserve for our review his contention that County Court erred in granting the People's motionfor an order directing him to submit to a buccal swab inasmuch as he did not move to suppressthe DNA evidence obtained therefrom (see People v Clark, 15 AD3d 864, 865 [2005], lv denied 4NY3d 885 [2005], 5 NY3d 787 [2005]; see generally People v Middleton, 54 NY2d 42,48-49 [1981]). "In any event, 'there is no basis here to disturb the court's determination that therewas probable cause to order the [buccal swab]' " (Clark, 15 AD3d at 865; seegenerally Matter of Abe A., 56 NY2d 288, 297-298 [1982]).
Contrary to defendant's further contention, the conviction is supported by legally sufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although theemployees of the bank robbed by defendant and his accomplices could not specifically identifydefendant, the element of identity was established by a compelling chain of circumstantialevidence that had no reasonable explanation except that defendant was one of the perpetrators(see People v Butler, 81 AD3d484 [2011], lv denied 16 NY3d 893 [2011]; People v Clark, 76 AD3d 916 [2010], lv denied 15 NY3d952 [2010]; People v Jurgensen, 288 AD2d 937, 938 [2001], lv denied 97 NY2d684 [2001]). That evidence included the presence of defendant's DNA in the stolen vehicle usedby the perpetrators to flee the scene. Viewing the evidence in light of the elements of the crimesin this nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Finally, thesentence is not unduly harsh or severe. Present—Centra, J.P., Fahey, Peradotto, Carni andMartoche, JJ.