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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Judson WATKINS, Defendant-Appellant.  (Appeal No. 1.)

Decided: April 29, 2005

PRESENT:  GREEN, J.P., HURLBUTT, KEHOE, SMITH, AND HAYES, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Shirley K. Duffy of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 In appeal No. 2, defendant appeals from a judgment convicting him following a jury trial of petit larceny (Penal Law § 155.25).   At that trial, the jury was unable to reach a verdict with respect to the charges of rape in the first degree (§ 130.35[3] ) and endangering the welfare of a child (§ 260.10[1] ), and the jury found defendant not guilty of the remaining charges.   In appeal No. 1, defendant appeals from a judgment convicting him of the charges of rape and endangering the welfare of a child following a retrial on those charges.   County Court properly denied defendant's motion to dismiss the indictment on speedy trial grounds.   After the People stated their readiness for trial with respect to the trial at issue in appeal No. 2, they sought and obtained an adjournment for DNA testing.   The People's statement of readiness was not illusory because the People could have proceeded to trial without the DNA evidence, presenting the testimony of the victim and other witnesses (see People v. Brown, 269 A.D.2d 809, 704 N.Y.S.2d 421, affd. 96 N.Y.2d 80, 725 N.Y.S.2d 601, 749 N.E.2d 170;  People v. Bargerstock, 192 A.D.2d 1058, 596 N.Y.S.2d 611, lv. denied 82 N.Y.2d 751, 603 N.Y.S.2d 992, 624 N.E.2d 178). Defendant's remaining contentions on appeal concern only the judgment in appeal No. 1.

 We reject defendant's contention that the evidence concerning DNA testing was not reliable (see generally People v. Fontanez, 278 A.D.2d 933, 935, 718 N.Y.S.2d 541, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119;  People v. Hall, 266 A.D.2d 160, 160-161, 700 N.Y.S.2d 105, lv. denied 94 N.Y.2d 948, 710 N.Y.S.2d 4, 731 N.E.2d 621;  People v. Hamilton, 255 A.D.2d 693, 694, 681 N.Y.S.2d 117, lv. denied 92 N.Y.2d 1032, 684 N.Y.S.2d 497, 707 N.E.2d 452;  People v. Morales, 227 A.D.2d 648, 649, 643 N.Y.S.2d 217, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 729, 677 N.E.2d 301).   Defendant failed to preserve for our review his contentions regarding the chain of custody with respect to the victim's underwear (see CPL 470.05 [2] ).   In any event, his contentions are without merit.  “ ‘[T]he circumstances provide reasonable assurances of the identity and unchanged condition’ of the evidence,” and thus any deficiencies in the chain of custody affect only the weight of the evidence and not its admissibility (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310;  see People v. Thompson, 300 A.D.2d 1032, 1033, 751 N.Y.S.2d 921, lv. denied 99 N.Y.2d 620, 757 N.Y.S.2d 831, 787 N.E.2d 1177).   Contrary to defendant's further contention, there was no double jeopardy violation in appeal No. 1 with respect to the retrial of the unresolved charges (see Matter of Wiley v. Couzens, 38 N.Y.2d 731, 381 N.Y.S.2d 39, 343 N.E.2d 757).

 Contrary to defendant's further contention, reversal is not required based on an alleged Rosario violation.   Even assuming, arguendo, that the videotape at issue was Rosario material, we conclude that there is no basis for reversal on the ground of untimely disclosure inasmuch as defendant failed to demonstrate that he was substantially prejudiced by the delay in obtaining the videotape (see People v. Goston, 9 A.D.3d 905, 906-907, 779 N.Y.S.2d 699, lv. denied 3 N.Y.3d 706, 785 N.Y.S.2d 34, 818 N.E.2d 676).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant, who was sentenced as a persistent felony offender, failed to preserve for our review his present challenge to the constitutionality of the persistent felony offender statute (see People v. Besser, 96 N.Y.2d 136, 148, 726 N.Y.S.2d 48, 749 N.E.2d 727;  People v. Ruffins, 6 A.D.3d 1153, 1154, 776 N.Y.S.2d 405, lv. denied 3 N.Y.3d 662, 782 N.Y.S.2d 704, 816 N.E.2d 577).   In any event, that challenge lacks merit (see People v. Nelson, 16 A.D.3d 1172, 791 N.Y.S.2d 236;  Ruffins, 6 A.D.3d at 1154, 776 N.Y.S.2d 405).   We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.