| People v Carter |
| 2007 NY Slip Op 10196 [46 AD3d 1335] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Vernon L.Carter, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedDecember 22, 2004. The judgment convicted defendant, after a nonjury trial, of criminal trespassin the second degree (two counts) and petit larceny.
It is hereby ordered that said appeal from the judgment insofar as it imposed a sentence ofimprisonment be and the same hereby is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof two counts of criminal trespass in the second degree (Penal Law § 140.15) and onecount of petit larceny (§ 155.25). Defendant contends that the verdict is against the weightof the evidence because the People failed to establish that there were two separate acts ofcriminal trespass and that he committed petit larceny. We reject that contention (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). With respect to the two counts of criminaltrespass, the victim testified that she found defendant inside her apartment on one occasion andthat he did not have permission to be there, and a second witness testified that, two days earlier,he had observed that same man inside the victim's apartment. With respect to the count of petitlarceny, the second witness further testified that, when he had observed the man two days earlier,the man had been removing items from the victim's apartment. The fact that the second witnesswas unable to identify defendant as that man at trial is not dispositive (see generally CPL60.25). "Where, as here, witness credibility is of paramount importance to the determination ofguilt or innocence, the appellate court must give '[g]reat deference . . . [to the]fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor' " (People v Harris, 15 AD3d 966,967 [2005], lv denied 4 NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495).
Although defendant further contends that County Court erred in imposing a consecutivesentence on one of the two counts of criminal trespass, he has fully served his sentence. Thus, hiscontention is moot, and that part of the appeal from the judgment is dismissed (see People vGriffin, 239 AD2d 936 [1997]). Finally, we note that the certificate of conviction incorrectlyreflects that defendant was convicted following a jury trial, and it must therefore be amended toreflect that he was convicted following a nonjury trial (see generally People v Saxton, 32 AD3d 1286 [2006]).Present—Scudder, P.J., Hurlbutt, Fahey, Green and Pine, JJ.