SMITH, KATHRYN v. PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
577
KA 15-01152
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KATHRYN V. SMITH, DEFENDANT-APPELLANT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered January 29, 2015. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree,
burglary in the second degree and robbery in the second degree (three
counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her
following a jury trial of burglary in the first degree (Penal Law
§ 140.30 [4]), burglary in the second degree (§ 140.25 [2]), and three
counts of robbery in the second degree (§ 160.10 [1]). The charges
arose from two residential burglaries committed by defendant, her
boyfriend and several other accomplices, one of whom cooperated with
the prosecution and testified against defendant at trial.
Viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we reject
defendant’s contention that the verdict is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant’s contention is based largely on her assertion that the
accomplice testimony is incredible as a matter of law. “[R]esolution
of issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and we perceive no reason to
disturb the jury’s resolution of those issues in this case.
We reject defendant’s further contention that she unequivocally
invoked her right to remain silent and that County Court therefore
erred in refusing to suppress her statements to the police. Affording
deference to the court’s determination, which is supported by the
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KA 15-01152
record, and viewing defendant’s alleged invocation of the right to
silence in context, we conclude that defendant did not unequivocally
invoke her right to silence (see People v Zacher, 97 AD3d 1101, 1101,
lv denied 20 NY3d 1015). Defendant failed to preserve for our review
her further contention that the court erred in instructing the jury
with respect to the count of burglary in the first degree (see CPL
470.05 [2]), and we decline to exercise our power to address it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Contrary to defendant’s further contention, because it was not
legally impossible for the jury to convict her of burglary in the
first degree and acquit her of robbery in the first degree, as charged
by the court, the verdict with respect to those counts is not
repugnant (see People v Muhammad, 17 NY3d 532, 539-540; People v
James, 112 AD2d 380, 381-382).
Finally, contrary to defendant’s contentions, the court did not
abuse its discretion in refusing to afford her youthful offender
status (see People v Middlebrooks, 25 NY3d 516, 527), and her sentence
is not unduly harsh or severe.
Entered: June 17, 2016 Frances E. Cafarell
Clerk of the Court