
    The People of the State of New York, Respondent, v Tony Deets, Appellant.
    [607 NYS2d 378]
   Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 26, 1991, convicting him of rape in the first degree and attempted sodomy in the first degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

On January 18, 1989, the defendant and another abducted and raped a 16-year-old girl. The defendant was convicted of rape in the first degree and attempted sodomy in the first degree.

On appeal the defendant contends that reversible error took place due to the People’s failure to perform DNA testing on the seminal stains on the complainant’s skirt and the People’s subsequent failure to preserve any of the stains for possible testing by the defendant. We find these contentions to be without merit. The People were under no obligation to conduct DNA tests on the seminal fluid and the defendant’s own failure to timely move for such tests resulted in the evidence becoming stale.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).

We find the defendant’s remaining contention to be without merit (see, People v Suitte, 90 AD2d 80). Sullivan, J. P., Pizzuto, Joy and Goldstein, JJ., concur.  