People v Pena (Jeriel)

[*1] People v Pena (Jeriel) 2018 NY Slip Op 51472(U) Decided on October 19, 2018 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 19, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
570562/14

The People of the State of New York, Respondent,

against

Jeriel Pena, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J. on motion to dismiss; Robert M. Mandelbaum, J. at trial and sentencing), rendered May 13, 2014, after a nonjury trial, convicting him of criminal trespass in the third degree, and imposing sentence.

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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 19, 2018