County Court, Genesee County, October 4, 2022

Leah Farwell for appellant.

Kevin Finnell, District Attorney (William Zickl of counsel), for respondent.

Defendant/appellant S.W. (hereinafter, the appellant) appeals {**81 Misc 3d at 300}from the judgment of the Batavia City Court (Judge Durin B. Rogers, presiding). A bench trial was commenced on September 14, 2021, and the appellant was convicted of custodial interference in the second degree in violation of Penal Law § 135.45 (1) and thereafter sentenced to a three-year term of probation. A brief was submitted by the appellant on June 7, 2022. The respondent filed a brief on September 20, 2022. Oral argument was held on September 21, 2022.

The appellant essentially raised three issues on appeal. The first is whether the appellant was convicted upon legally insufficient evidence. The second issue is whether the verdict was against the weight of the evidence. The last issue is whether the trial court imposed a sentence upon the appellant that was harsh and excessive.

Appellant failed to preserve her legal sufficiency contention for review inasmuch as she failed to move for a trial order of dismissal on any grounds. (People v Gray, 86 NY2d 10, 20-21 [1995]; People v Lozada, 164 AD3d 1626 [4th Dept 2018].) At any rate, the appellant's challenge lacks merit.

The relevant provision of the statute provides that a person is guilty of custodial interference in the second degree when "[b]eing a relative of a child less than sixteen years old, intending to hold such child . . . for a protracted period, and knowing that [s]he has no legal right to do so, [s]he takes . . . such child from [her] lawful custodian." (Penal Law § 135.45 [1].) Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620, 621 [1983]), the sworn testimony of the People's sole [*2]witness and the complainant, I.W., established the required elements of custodial interference in the second degree. Specifically, the complainant testified that she had legal custody of the child and that the child was less than 16 years old at the time of the offense. The complainant further testified under oath that the appellant, which is the child's grandmother, kept the child past the agreed upon return time of 12:00 p.m. on Saturday, January 30, 2021, and did not return the child until late on Sunday, January 31, 2021, without any authority or right to do so. (See People v Alejandro, 60 AD3d 1381, 1381-1382 [4th Dept 2009].)

"Further, after viewing all the evidence in a neutral light, weighing the relative probative force of the conflicting proof, and according due deference to the credibility determinations{**81 Misc 3d at 301} of the factfinder, [this court is] unpersuaded that the verdict was against the weight of the evidence." (People v Owens, 45 AD3d 1058, 1059 [3d Dept 2007]; see generally People v Danielson, 9 NY3d 342 [2007].) In addition to the above facts established at trial, the appellant testified on her own behalf and confirmed that she was to return the child to the complainant by noon on Saturday. However, appellant kept the child so as to finish box-braiding her hair. According to appellant, after going to the store sometime on Saturday to obtain more hair supplies for the box braids, she did not finish the child's hair until 8 p.m. Saturday night. Appellant testified at trial that there was a "blizzard," and she could not drive the child home. The appellant acknowledged that she drove the child back to the complainant's house on Sunday. No other testimony or evidence was presented by either party regarding the existence of a blizzard.

The issue boils down to whether the appellant kept the child for a "protracted period of time." The Fourth Department addressed this issue in People v Sharp (104 AD3d 1325 [4th Dept 2013]).

The facts are analogous to Sharp in that both defendants kept the child overnight and both were found guilty of custodial interference in the second degree. During the bench trial, the trial court heard testimony from the People's sole witness, I.W., the defendant's mother and the child's great-grandmother, while the defense called the appellant as its sole witness and determined the credibility of each witness. Additionally, the Judge considered the totality of the circumstances, which include not only the testimony, but also other evidence.

This case is unlike People v Garcia (46 Misc 3d 620 [Crim Ct, NY County 2014]), which was cited by the appellant. In Garcia, the main issue was whether the accusatory instrument was factually insufficient as it did not contain "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." (See Garcia at 623.)

Accordingly, although an acquittal would not have been unreasonable, given the primacy of the credibility issue and the trial court's superior vantage point in assessing the credibility of the testimony, this court has no basis for disturbing the trial court's determination. (People v Burroughs, 57 AD3d 1459 [4th Dept 2008].)

Therefore, the court will affirm the conviction for custodial interference in the second degree.{**81 Misc 3d at 302}

Based upon the defendant's criminal history and the recommendation for a sentence of probation by the Probation Department in the PSI Report, the sentence ultimately imposed below is not unduly harsh and severe, and this court can "discern no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice." (People v Gianni, 94 AD3d 1477, 1478 [4th Dept 2012]; see also People v Harris, 195 AD3d 1537 [4th Dept 2021]; People v Delgado, 80 NY2d 780 [1992].)

Therefore, the court affirms the sentence of the trial court.[*3]

The judgment of conviction of the Batavia City Court is affirmed in its entirety.