Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RICKY SEBRING, DEFENDANT–APPELLANT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
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 AD3d 1422, 1422; see People v. Hollins, 278 A.D.2d 932, 932, lv. denied 96 N.Y.2d 759). Here, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).
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). 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 AD3d 1614, 1616, lv denied 16 NY3d 859), and “no Wade hearing was required because the identifying witness[ ] knew defendant, and thus the identification was merely confirmatory” (People v. Maryon, 20 AD3d 911, 912, lv denied 5 NY3d 854). 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 AD3d 1242, 1243, lv denied 11 NY3d 931).
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 AD3d 1779, 1780, lv denied 14 NY3d 801 [internal quotation marks omitted]; see People v. Barber, 106 AD3d 1533, 1533). We nevertheless conclude that his challenge lacks merit.
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: KA 12–00147
Decided: November 08, 2013
Court: Supreme Court, Appellate Division, Fourth Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)