        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

76
KA 10-01114
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTOINE BROWN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered February 24, 2010. The judgment convicted
defendant, upon a nonjury verdict, of robbery in the first 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 of robbery 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 to
preserve for our review his contention that County Court erred in
granting the People’s motion for an order directing him to submit to a
buccal swab inasmuch as he did not move to suppress the DNA evidence
obtained therefrom (see People v Clark, 15 AD3d 864, 865, lv denied 4
NY3d 885, 5 NY3d 787; see generally People v Middleton, 54 NY2d 42,
48-49). “In any event, ‘there is no basis here to disturb the court’s
determination that there was probable cause to order the [buccal
swab]’ ” (Clark, 15 AD3d at 865; see generally Matter of Abe A., 56
NY2d 288, 297-298).

     Contrary to defendant’s further contention, the conviction is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Although the employees of the bank
robbed by defendant and his accomplices could not specifically
identify defendant, the element of identity was established by a
compelling chain of circumstantial evidence that had no reasonable
explanation except that defendant was one of the perpetrators (see
People v Butler, 81 AD3d 484, lv denied 16 NY3d 893; People v Clark,
76 AD3d 916, lv denied 15 NY3d 952; People v Jurgensen, 288 AD2d 937,
938, lv denied 97 NY2d 684). That evidence included the presence of
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                                                         KA 10-01114

defendant’s DNA in the stolen vehicle used by the perpetrators to flee
the scene. Viewing the evidence in light of the elements of the
crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Finally, the sentence is not unduly harsh or severe.




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
