People v. Brown

PRESENT: CENTRA

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. PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.

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 A.D.3d 864, 865, 788 N.Y.S.2d 800, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975, 5 N.Y.3d 787, 801 N.Y.S.2d 807, 835 N.E.2d 667; see generally People v. Middleton, 54 N.Y.2d 42, 48–49, 444 N.Y.S.2d 581, 429 N.E.2d 100). “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 A.D.3d at 865, 788 N.Y.S.2d 800; see generally Matter of Abe A., 56 N.Y.2d 288, 297–298, 452 N.Y.S.2d 6, 437 N.E.2d 265).

Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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 A.D.3d 484, 917 N.Y.S.2d 147, lv. denied 16 N.Y.3d 893, 926 N.Y.S.2d 29, 949 N.E.2d 977; People v. Clark, 76 A.D.3d 916, 908 N.Y.S.2d 40, lv. denied 15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323; People v. Jurgensen, 288 A.D.2d 937, 938, 732 N.Y.S.2d 815, lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764 N.E.2d 403). That evidence included the presence of 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 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.