        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1136
KA 12-00147
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICKY SEBRING, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT HALLBORG, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     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, of forgery 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 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 AD2d 932, 932, lv denied 96 NY2d 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 NY2d 490, 495).

     Contrary to defendant’s further contention, he was not denied
effective assistance of counsel (see generally People v Baldi, 54 NY2d
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
                                 -2-                          1136
                                                         KA 12-00147

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.




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
