Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Ricky SEBRING, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert Hallborg, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert Hallborg, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a nonjury trial of forgery in the second degree (Penal Law § 170.10[1] ). We reject defendant's contention that the verdict is against the weight of the evidence because one of the People's witnesses was not credible. “ ‘In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference’ ” ( People v. McCoy, 100 A.D.3d 1422, 1422, 953 N.Y.S.2d 788;see People v. Hollins, 278 A.D.2d 932, 932, 718 N.Y.S.2d 922,lv. denied96 N.Y.2d 759, 725 N.Y.S.2d 286, 748 N.E.2d 1082). Here, viewing the evidence in light of the elements of the crime 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 conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Contrary to defendant's further contention, he was not denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). We note in particular that the failure of defense counsel to make a specific motion for a trial order of dismissal or to move for a Wade hearing does not constitute ineffective assistance. Any motion for a trial order of dismissal would have had no chance of success ( see People v. Horton, 79 A.D.3d 1614, 1616, 913 N.Y.S.2d 463,lv. denied16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200), and “no Wade hearing was required because the identifying witness[ ] knew defendant, and thus the identification was merely confirmatory” ( People v. Maryon, 20 A.D.3d 911, 912, 797 N.Y.S.2d 684,lv. denied5 N.Y.3d 854, 806 N.Y.S.2d 174, 840 N.E.2d 143). Further, defense counsel's waiver of his opening statement is “attributable to or substantially ameliorated by the fact that defendant elected to waive a jury trial” ( id. at 913;see People v. Webster, 56 A.D.3d 1242, 1243, 867 N.Y.S.2d 292,lv. denied11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450).
With respect to defendant's challenge to the severity of the sentence, we note that defendant's release to parole supervision does not render his challenge moot because he “remains under the control of the Parole Board until his sentence has terminated” ( People v. Hannig, 68 A.D.3d 1779, 1780, 890 N.Y.S.2d 856,lv. denied14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939 [internal quotation marks omitted]; see People v. Barber, 106 A.D.3d 1533, 1533, 964 N.Y.S.2d 450). We nevertheless conclude that his challenge lacks merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.