People v. Ruffell

55 A.D.3d 1271, 864 N.Y.S.2d 347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2008
• Status: Published

Opinion

Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered June 5, 2007. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and criminal possession of a weapon in the fourth degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). We reject defendant’s contention that County Court erred in requiring defendant to provide a DNA sample. Although the People requested the DNA sample after the 45-day statutory period for discovery had elapsed (see CPL 240.90 [1]), we conclude under the circumstances of this case that the motion was properly granted for “good cause shown” before the commencement of the trial (id.). The People established that the DNA test results from the knife used to stab the victim would result in material and relevant evidence (see People v Shields, 155 AD2d 978 [1989], lv denied 75 NY2d 818 [1990]), and “the delay itself did not cause defendant any prejudice” (People v Lewis, 44 AD3d 422, 422-423 [2007], lv denied 9 NY3d 1035 [2008]; see also People v Jenkins, 98 NY2d 280 [2002]). We also reject defendant’s contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Martoche, Green and Gorski, JJ.