| People v Shoemaker |
| 2014 NY Slip Op 05211 [119 AD3d 1073] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vKathryn A. Shoemaker, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered June 29, 2011, upon a verdict convicting defendant of the crimes of murder inthe first degree and grand larceny in the third degree (six counts).
Defendant was involved in a business and sexual relationship with the victim, a52-year-old excavation contractor who was 19 years her senior. The victim had fundeddefendant's fledgling trucking business by buying her a tractor-trailer, and he hadpreviously assisted her with money to purchase a karaoke machine, pickup truck andmotorcycle. A State Police investigation revealed that, starting in late June 2009,defendant cashed a series of six forged checks drawn on the victim's business accounttotaling over $35,000 and spent most of the money on items unrelated to her truckingbusiness. The last check, for $5,100, resulted in the victim's account being overdrawn byapproximately $1,900. The bank covered the overdraft and notified the victim on August18, 2009. That same day, the victim telephoned defendant to confront her about thechecks. Kurtis Conto, a young man who lived in defendant's home at the time, overheardher conversation with the victim on a speakerphone. According to Conto, the victim "gotmad and told [defendant] . . . he was going to go to the police if she didn'tcome over for the checks she had wrote." Defendant then told Conto that the victim wasgoing too far regarding the checks and she needed to "get rid of him." According toConto, defendant also asked him if he would help her dispose of the body if she were tokill the victim.
[*2] The next evening, thevictim delivered to defendant a camper that he had agreed to let her borrow for a trip andtold her to register it in her name the following day. Unbeknownst to the victim,defendant had already registered the camper in her name with forged documents. Laterthat night, defendant went to the victim's residence, staying until approximately 11:00p.m. When she returned home, she woke Conto and told him to burn the garbage that shehad collected in the kitchen. While doing so, Conto noticed a rope and plastic bag amongthe burning items; defendant told Conto that she had used them to strangle the victim andthat she had then cut his wrist to make it look like a suicide. Defendant also asked Contoto get rid of a handgun that she said she had taken with her, but it had jammed.
The following morning, the victim was found dead on his bed with quarter-inch widelinear abrasion marks on both sides of his neck and a postmortem cut on his wrist. Thepolice later recovered the handgun and, following the completion of their investigation,charged defendant with murder in the first degree, murder in the second degree and sixcounts of grand larceny in connection with the checks cashed from the victim's businessaccount. Ultimately, defendant was convicted of murder in the first degree and each ofthe grand larceny charges. County Court then sentenced her to life in prison withoutparole on the murder conviction and six consecutive terms of 2
Where, as here, a different verdict would not have been unreasonable, we will weighthe probative force of conflicting testimony and the strength of conflicting inferences indetermining whether the verdict is against the weight of the evidence (see People v Romero, 7 NY3d633, 643 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Further, weaccord deference to the jury's resolution of the credibility issues involved, given itsopportunity to view the witnesses and observe their demeanor throughout this process(see People v Bleakley, 69 NY2d at 495; People v Portee, 56 AD3d 947, 949 [2008], lvdenied 12 NY3d 820 [2009]; People v Bolarinwa, 258 AD2d 827, 831[1999], lv denied 93 NY2d 1014 [1999]).
Defendant's primary contention that Conto lacks credibility is based on his denial thathe had ever been arrested despite the existence of a mug shot and booking sheet preparedby the State Police for an incident that occurred in 2008. The State Police, however,confirmed Conto's explanation that he had merely been detained and never arrested orcharged with anything in connection with the incident. Defendant also claims that Contolied when he denied being provided a benefit for his testimony because there wasevidence that a State Police captain had written a letter requesting that the Department ofMotor Vehicles reinstate Conto's license. As explained by the author of the letter,however, Conto's license plates had been confiscated as part of a search warrant executedat defendant's residence. As a result, when Conto was unable to turn in the plates, hisdriver's license was suspended. The letter was drafted in order to rectify the situation andallow Conto's license to be reinstated. These collateral issues were fully explored at trialand, inasmuch as Conto's testimony regarding defendant's statements to him wasconsistent, corroborated by other evidence and not inherently incredible, we find no basisto disturb the jury's credibility determination (see People v Jones, 101 AD3d 1241, 1242 [2012], lvdenied 21 NY3d 944 [2013]; People v Chatham, 55 AD3d 1045, 1046 [2008], lvdenied 14 NY3d 839 [2010]; People v Lane, 47 AD3d 1125, 1126 [2008], lvdenied 10 NY3d 866 [2008]).
With respect to the larceny convictions, a handwriting expert testified unequivocallythat all six checks were forgeries. The expert also opined that they were consistent withhaving [*3]been written by defendant. Further, a voidedcheck from the victim's business account and a sheet of paper with the victim's namewritten out multiple times were found at defendant's residence, suggesting that someonethere had been practicing signing the victim's name. The evidence also conclusivelyestablished that defendant had personally cashed each of the six forged checks at thebank. While defendant argues that the six forged checks were consistent with the victim'shistory of providing her with funds for her businesses, an examination of defendant'sbusiness and personal accounts revealed that she had not spent the money on her truckingbusiness, but had instead purchased, among other things, a car, car trailer and campproperty. The evidence also indicated that, contrary to defendant's contention, the victimwas unaware that the checks had been written. He kept complete records of his businessaccount, including a record of various transactions in May 2009 and three checks he hadwritten to defendant in June 2009 to cover expenses related to her trucking business, butthere were no entries in his records for any of the six forged checks in question. Wheninitially informed by the bank of the overdraft caused by the sixth check, the victimindicated that he was unaware of the check. Considering this evidence in a neutral light,defendant's larcenous intent is readily inferable and the verdicts convicting her of grandlarceny in the third degree are not against the weight of the evidence (see People v Brown, 107AD3d 1145, 1147 [2013], lv denied 22 NY3d 1039 [2013]; People v Farnsworth, 103AD3d 982, 983-984 [2013]; People v Race, 78 AD3d 1217, 1221 [2010], lvdenied 16 NY3d 835 [2011]).
The evidence also supports the jury's determination that defendant is guilty of murderin the first degree. According deference to the jury's apparent acceptance of Conto'stestimony, defendant expressed her intent to "get rid of" the victim after he confrontedher about the money that she had stolen from his account and threatened to tell thepolice. She went to the victim's house with a loaded handgun and she was the last knownperson to see him alive. Further, when she returned home, she admitted to Conto that shehad killed the victim in a manner consistent with how he was found. Although defendantinitially denied to the police that she had been to the victim's residence on the night inquestion, she later admitted as much. While we acknowledge that defendant was threeinches shorter than the victim, the evidence also established that she outweighed him by30 pounds and was 19 years younger. Further, there was testimony that she was strongenough to lift a 180-pound male in a bear hug and carry him out of a bar.
We are also aware that the defense expert testified that death by cardiac inhibitioncould not be ruled out, but we note as well that he agreed with the essential finding of thePeople's medical expert that the victim died as a result of being strangled with a ligatureby another person. Both experts further agreed that the lack of any defensive woundscould be explained by, among other things, the victim being strangled from behind.Although defendant speculates that, given the lack of any defensive wounds, thestrangulation could have been a consensual part of sexual activity with some other personafter she left his house that night, both experts agreed that the existence of multipleligature marks on the victim's neck was consistent with some form of struggling. Thepostmortem cut on the victim's wrist also indicates an attempt to cover up the cause ofdeath, consistent with defendant's statement to Conto. Considering all of the evidence ina neutral light, we find no basis to conclude that the verdict convicting defendant ofmurder in the first degree is against the weight of the evidence (see People v Dashnaw, 116AD3d 1222, 1226-1227 [2014]; People v Johnson, 106 AD3d 1272, 1278-1279 [2013],lv denied 21 NY3d 1043 [2013]; People v Race, 78 AD3d at 1221).
Finally, although defendant argues that the sentence imposed is harsh and excessive,she [*4]was convicted of identity theft in Louisiana in2004 and, in determining the appropriate sentence, County Court took into account theoverwhelming evidence that defendant coldly planned and carried out this murder andhas shown no remorse. Contrary to defendant's claim, we find nothing in the record toindicate that County Court was improperly vindictive or sought to punish her forexercising her right to trial (seePeople v Mercado, 113 AD3d 930, 934 [2014]; People v Olson, 110 AD3d1373, 1377 [2013]). Absent any apparent abuse of discretion or extraordinarycircumstance, we decline to disturb the sentence (see People v Mattis, 108 AD3d 872, 876 [2013], lvdenied 22 NY3d 957 [2013]; People v Callicut, 101 AD3d 1256, 1265 [2012], lvdenied 20 NY3d 1096 [2013]; People v Hansen, 290 AD2d 47, 57 [2002],affd 99 NY2d 339 [2003]).
Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.