| People v Kalinowski |
| 2014 NY Slip Op 04616 [118 AD3d 1434] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobin Kalinowski, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered April 5, 2012. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting her following a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contendsthat the evidence is legally insufficient to establish that she intended to kill the victim,and that the verdict is against the weight of the evidence in that regard. We reject thosecontentions. Defendant was charged with intentionally killing her husband by shootinghim in the back of the head with a .22 caliber rifle while he was sleeping in bed.Although defendant admits that she fired the fatal shot, she asserts that the gundischarged accidently when she picked it up off of the bed, and that she did not intend tokill the victim. The evidence at trial established, however, that the victim sustained acontact wound to the back of his head, which is not consistent with defendant's claim thatthe gun accidently discharged when she picked it up off of the bed. According todefendant's reenactment of the shooting, which was videotaped by the police and playedfor the jury, defendant was holding the rifle in a manner such that its barrel would notcome into direct contact with the victim's head.
Moreover, the medical evidence established that the bullet entered the victim's skullnear the middle of his head and traveled downward toward the base of the skull. If theshooting happened as defendant described in her video reenactment and other statements,the bullet would have had an upward trajectory. A firearms expert who test-fired the rifletestified that it was in proper working condition, which is contrary to defendant'sassertion that the gun needed to be fixed and that the victim was fixing it in the bedroomon the night of the shooting. The expert further testified that it took five to seven poundsof pressure to pull the rifle's trigger, which he described as a "substantial trigger pull"and not a "hair trigger." Thus, the expert concluded, the rifle would not fire if a person"just touch[ed] or tap[ped]" the trigger. That testimony undermined defendant's claimthat the rifle discharged when it slipped out of her hands.
The People also presented evidence that the victim, an experienced hunter, was verysafe with his guns and would not have left a loaded rifle on his bed with the safety in theoff position. Defendant's own brother described the victim at trial as "Mr. Safety." Inaddition, defendant told inconsistent stories about how the shooting occurred, and shemade numerous admissions to fellow inmates while in jail awaiting trial. Finally,although defendant told the police that there were no problems with her marriage, thePeople presented evidence at trial that she was having an affair with another man whenthe victim was shot, and that after the shooting she told her paramour not to tell thepolice about their affair. When defendant learned that the paramour intended to testifyfor the prosecution at trial, defendant conspired with an undercover police officer, whodefendant thought was a hit man, to have her paramour murdered. Defendant laterpleaded guilty to conspiracy in the second degree as a result of her attempt to murder thewitness, and evidence of her plea was entered at trial.
Viewing the evidence in the light most favorable to the People, as we must (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a "valid lineof reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial," i.e, that defendantintended to kill the victim (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Cooper, 59 AD3d1052, 1052-1053 [2009], lv denied 12 NY3d 852 [2009]; People v Tyes, 30 AD3d1045, 1046 [2006], lv denied 7 NY3d 795 [2006]). Based upon ourindependent review of the evidence pursuant to CPL 470.15 (5), and viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not contrary to theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Although adifferent verdict would not have been unreasonable in light of defendant's testimony thatthe shooting was accidental, "the jury was in the best position to assess the credibility ofthe witnesses and, on this record, it cannot be said that the jury failed to give theevidence the weight it should be accorded" (People v Orta, 12 AD3d 1147, 1147 [2004], lv denied4 NY3d 801 [2005]; seePeople v Canfield, 111 AD3d 1396, 1397 [2013], lv denied 22 NY3d1087 [2014]; People vWoods, 26 AD3d 818, 819 [2006], lv denied 7 NY3d 765 [2006]).
We reject defendant's further contention that Supreme Court erred in allowing thePeople to present evidence at trial of her conspiracy to murder her former paramour inorder to prevent him from testifying at trial. Evidence that defendant attempted to kill aprosecution witness is admissible as evidence of her consciousness of guilt (seePeople v Pawlowski, 116 AD2d 985, 986 [1986], lv denied 67 NY2d 948[1986]; see also People vArguinzoni, 48 AD3d 1239, 1240 [2008], lv denied 10 NY3d 859[2008]; People v Maddox, 272 AD2d 884, 885 [2000], lv denied 95NY2d 867 [2000]), and its prejudicial effect did not outweigh its probative value (seegenerally People v Ventimiglia, 52 NY2d 350, 359-360 [1981]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Scudder, P.J., Centra, Carni, Lindley and DeJoseph, JJ.