| People v Sebring |
| 2013 NY Slip Op 07366 [111 AD3d 1346] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickySebring, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 22, 2011. The judgment convicted defendant, after a nonjury trial, offorgery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following anonjury trial of forgery in the second degree (Penal Law § 170.10 [1]). We rejectdefendant's contention that the verdict is against the weight of the evidence because oneof the People's witnesses was not credible. " 'In a bench trial, no less than a jury trial, theresolution of credibility issues by the trier of fact and its determination of the weight tobe accorded the evidence presented are entitled to great deference' " (People v McCoy, 100 AD3d1422, 1422 [2012]; see People v Hollins, 278 AD2d 932, 932 [2000], lvdenied 96 NY2d 759 [2001]). Here, viewing the evidence in light of the elements ofthe crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's further contention, he was not denied effective assistance ofcounsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). We note inparticular that the failure of defense counsel to make a specific motion for a trial order ofdismissal or to move for a Wade hearing does not constitute ineffectiveassistance. Any motion for a trial order of dismissal would have had no chance of success(see People v Horton, 79AD3d 1614, 1616 [2010], lv denied 16 NY3d 859 [2011]), and "noWade hearing was required because the identifying witness[ ] knew defendant,and thus the identification was merely confirmatory" (People v Maryon, 20 AD3d 911, 912 [2005], lv denied5 NY3d 854 [2005]). Further, defense counsel's waiver of his opening statement is"attributable to or substantially ameliorated by the fact that defendant elected to waive ajury trial" (id. at 913; see People v Webster, 56 AD3d 1242, 1243 [2008], lvdenied 11 NY3d 931 [2009]).
With respect to defendant's challenge to the severity of the sentence, we note thatdefendant'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 [*2]AD3d 1779, 1780[2009], lv denied 14 NY3d 801 [2010] [internal quotation marks omitted]; see People v Barber, 106AD3d 1533, 1533 [2013]). We nevertheless conclude that his challenge lacks merit.Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.