Opinion
Docket No. CR-321-21
10-04-2022
The People of the State of New York, Respondent, v. S.W., Defendant/Appellant.
Kevin Finnell, Esq., Genesee County District Attorney By: William Zickl, Esq., Assistant District Attorney. Leah Farwell, Esq., Attorney for Appellant.
Kevin Finnell, Esq., Genesee County District Attorney By: William Zickl, Esq., Assistant District Attorney.
Leah Farwell, Esq., Attorney for Appellant.
MELISSA LIGHTCAP CIANFRINI, J.
Defendant/Appellant S.W. (hereinafter, "the Appellant") appeals from the judgment of the Batavia City Court (Judge Durin B. Rogers, presiding). A bench trial was commenced on September 14, 2021 and the Appellant was convicted of custodial interference in the second degree in violation of Penal Law ("PL") § 135.45(1) and thereafter sentenced to 3-year term of probation. A brief was submitted by the Appellant on June 7, 2022. The Respondent filed a brief on September 20, 2022. Oral argument was held on September 21, 2022.
The Appellant essentially raised three issues raised on appeal. The first is whether the Appellant was convicted upon legally insufficient evidence. The second issue is whether the verdict was against the weight of the evidence. The last issue is whether the trial court imposed a sentence upon the Appellant that was harsh and excessive.
LEGALLY SUFFICIENT EVIDENCE AND WEIGHT OF THE EVIDENCE
Appellant failed to preserve her legal sufficiency contention for review inasmuch as she failed to move for a trial order of dismissal on any grounds. People v. Gray, 86 N.Y.2d 10, 20-21; People v. Lozada, 164 A.D.3d 1626. At any rate, the Appellant's challenge lacks merit.
The relevant provision of the statute provides that a person is guilty of custodial interference in the second degree when:
Being a relative of a child less than sixteen years old, intending to hold such child... for a protracted period, and knowing that [s]he has no legal right to do so, [s]he takes... such child from [her] lawful custodian.NY Penal Law § 135.45(1). Viewing the evidence in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620, 621), the sworn testimony of the People's sole witness and the complainant, I.W., established the required elements of custodial interference in the second degree. Specifically, the complainant testified that she had legal custody of the child and that the child was less than sixteen years old at the time of the offense. The complainant further testified under oath that the Appellant, which is the child's grandmother, kept the child past the agreed upon return time of 12:00 pm on Saturday, January 30, 2021, and did not return the child until late on Sunday, January 31, 2021 without any authority or right to do so. See People v. Alejandro, 60A.D.3d 1381, 1381-82.
"Further, after viewing all the evidence in a neutral light, weighing the relative probative force of the conflicting proof, and according due deference to the credibility determinations of the factfinder, [this Court is] unpersuaded that the verdict was against the weight of the evidence" People v. Owens, 45 A.D.3d 1058, 1059; see generally People v. Danielson, 9 N.Y.3d 342. In addition to the above facts established at trial, the Appellant testified on her own behalf and confirmed that she was to return the child to the complainant by noon on Saturday. However, Appellant kept the child so as to finish box-braiding her hair. According to Appellant, after going to the store sometime on Saturday to obtain more hair supplies for the box braids, she did not finish the child's hair until 8pm Saturday night. Appellant testified at trial that there was a "blizzard", and she could not drive the child home. The Appellant acknowledged that she drove the child back to the complainant's house on Sunday. No other testimony or evidence was presented by either party regarding the existence of a blizzard.
The issue boils down to whether the Appellant kept the child for a "protracted period of time." The Fourth Department addressed this issue in People v. Sharp, 104 A.D.3d 1325.
The facts are analogous to Sharp in that both defendants kept the child overnight and both were found guilty of custodial interference in the second degree. During the bench trial, the trial court heard testimony from the People's sole witness, I.W., the defendant's mother and the child's great-grandmother, while the defense called the Appellant as its sole witness and determined the credibility of each witness. Additionally, the Judge considered the totality of the circumstances, which include not only the testimony, but also other evidence.
This case is unlike People v. Garcia 36 Misc.3d 620, which was cited by the Appellant. In Garcia, the main issue was whether the accusatory instrument was factually insufficient as it did not contain "non hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." See Garcia at 608.
Accordingly, although an acquittal would not have been unreasonable, given the primacy of the credibility issue and the trial court's superior vantage point in assessing the credibility of the testimony, this Court has no basis for disturbing the trial court's determination. People v. Burroughs, 57 A.D.3d 1459.
Therefore, the Court will affirm the conviction for custodial interference in the second degree.
HARSH AND EXCESSIVE PUNISHMENT
Based upon the Defendant's criminal history and the recommendation for a sentence of probation by the Probation Department in the PSI Report, the sentence ultimately imposed below is not unduly harsh and severe, and this Court can "discern no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice." People v Gianni, 94 A.D.3d 1477; see also, See People v. Harris, 195 A.D.3D 1537, People v. Delgado, 80 N.Y.2d 790.
Therefore, the Court affirms the sentence of the trial court.
The judgment of conviction of the Batavia City Court is affirmed in its entirety.
This Decision constitutes the Order of this Court.