Opinion
570562/14
10-19-2018
The PEOPLE of the State of New York, Respondent, v. Jeriel PENA, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Ann E. Scherzer, J. on motion to dismiss; Robert M. Mandelbaum, J. at trial and sentencing), rendered May 13, 2014, affirmed.
The verdict convicting defendant of criminal trespass in the third degree (see Penal Law § 140.10[a] ) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson , 9 NY3d 342, 348-349 [2007] ). There is no basis upon which to disturb the trial court's determinations concerning credibility. The credited police testimony established that defendant entered a New York City subway platform unlawfully by pulling back the wheel of one of the turnstiles and stepping over it without paying the required fare and without permission (see People v. Alvarez, 162 AD3d 596 [2018] ; People v. Thiam , 16 Misc 3d 136[A], 2007 NY Slip Op 51665[U] [App Term, 1st Dept 2007], lv denied 9 NY3d 993 [2007] ). Contrary to defendant's unpreserved claim, the facts and circumstances did not provide him with a reasonable basis to believe that he was licensed to pass through the turnstiles without paying the fare (see People v. Bowser , 287 AD2d 647 [2001], lv denied 97 NY2d 751 [2002] ).
The court providently exercised its discretion in denying defendant's CPL 170.40 motion to dismiss the charges in furtherance of justice. There is no ‘compelling factor’ ( CPL 170.40[1] ) that would warrant that ‘extraordinary remedy’ ( People v. Hall , 151 AD3d 621, 622 [2017], lv denied 30 NY3d 950 [2017], quoting People v. Moye , 302 AD2d 610, 611 [2003], "which we have cautioned should be exercised sparingly" (see People v. Keith R. , 95 AD3d 65, 67 [2012], lv denied 19 NY3d 963 [2012] [internal quotation marks omitted]; see also People v. Marshall , 106 AD3d 1, 11 [2013], lv denied 21 NY3d 1007 [2013] ).