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

1288
KA 11-00710
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY JONES, DEFENDANT-APPELLANT.


DANIEL P. GRASSO, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     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 robbery in the second
degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter 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 of two counts of robbery in the second degree
(Penal Law § 160.10 [1], [2] [a]). On a prior appeal by the People,
we reversed the order that, inter alia, granted defendant’s motion to
set aside the verdict pursuant to CPL 330.30 (1), and we reinstated
the verdict and remitted the matter to Supreme Court for sentencing
with respect to defendant and his codefendant, Jonathan Benton (People
v Benton, 78 AD3d 1545, lv denied 16 NY3d 828). As noted in our prior
reversal, defendant’s contention that the People committed a Brady
violation by failing to disclose a report containing the results of
DNA analysis of a broken beer bottle allegedly used in the robbery
(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 forth in the CPL
330.30 motions” at the time of trial (Benton, 78 AD3d at 1546; see
People v Caswell, 56 AD3d 1300, 1303, lv denied 11 NY3d 923, 12 NY3d
781, cert denied ___ US ___, 129 S Ct 2775; People v Thomas, 8 AD3d
303, lv denied 3 NY3d 671, 682). Defendant again raises that
contention on this appeal, despite the lack of preservation, and we
conclude in any event that his contention is without merit. As we
noted on the appeal of the codefendant, the DNA report was not
exculpatory in nature (People v Benton, 87 AD3d 1304), and we thus
conclude that it did not constitute Brady material (see People v
Zaker, 305 AD2d 978, lv denied 100 NY2d 601, 2 NY3d 809; People v
                                 -2-                          1288
                                                         KA 11-00710

Martinez, 298 AD2d 897, 898, lv denied 98 NY2d 769, cert denied 538 US
963, reh denied 539 US 911). Defendant also failed to preserve for
our review his contention that the prosecutor violated his right to
discovery pursuant to CPL 240.20 inasmuch as he did not object to the
prosecutor’s failure to disclose the DNA report when defendant was
made aware of its existence during the trial (see People v Delatorres,
34 AD3d 1343, 1344, lv denied 8 NY3d 921). In any event, reversal
based on that 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 AD3d 1205, 1206-1207).

     Finally, viewing the evidence in light of the elements of the
crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
