                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 10, 2014                      104537
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

KATHRYN A. SHOEMAKER,
                    Appellant.
________________________________


Calendar Date:    May 29, 2014

Before:    Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.

                              __________


     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 in the first degree
and grand larceny in the third degree (six counts).

      Defendant was involved in a business and sexual
relationship with the victim, a 52-year-old excavation contractor
who was 19 years her senior. The victim had funded defendant's
fledgling trucking business by buying her a tractor-trailer, and
he had previously assisted her with money to purchase a karaoke
machine, pickup truck and motorcycle. 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 account totaling over $35,000 and spent most of
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the money on items unrelated to her trucking business. The last
check, for $5,100, resulted in the victim's account being
overdrawn by approximately $1,900. The bank covered the
overdraft and notified the victim on August 18, 2009. That same
day, the victim telephoned defendant to confront her about the
checks. Kurtis Conto, a young man who lived in defendant's home
at the time, overheard her conversation with the victim on a
speakerphone. According to Conto, the victim "got mad and told
[defendant] . . . he was going to go to the police if she didn't
come over for the checks she had wrote." Defendant then told
Conto that the victim was going too far regarding the checks and
she needed to "get rid of him." According to Conto, defendant
also asked him if he would help her dispose of the body if she
were to kill the victim.

      The next evening, the victim delivered to defendant a
camper that he had agreed to let her borrow for a trip and told
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. Later that night, defendant went to
the victim's residence, staying until approximately 11:00 p.m.
When she returned home, she woke Conto and told him to burn the
garbage that she had collected in the kitchen. While doing so,
Conto noticed a rope and plastic bag among the burning items;
defendant told Conto that she had used them to strangle the
victim and that she had then cut his wrist to make it look like a
suicide. Defendant also asked Conto to 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 wide linear abrasion marks on both sides of his
neck and a postmortem cut on his wrist. The police 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 six counts of grand larceny in
connection with the checks cashed from the victim's business
account. Ultimately, defendant was convicted of murder in the
first degree and each of the grand larceny charges. County Court
then sentenced her to life in prison without parole on the murder
conviction and six consecutive terms of 2a to 7 years in prison
on the larceny convictions, to be served concurrently with the
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life sentence. She now appeals, arguing that the convictions are
not supported by the weight of the evidence and that the
sentences are harsh and excessive.

      Where, as here, a different verdict would not have been
unreasonable, we will weigh the probative force of conflicting
testimony and the strength of conflicting inferences in
determining whether the verdict is against the weight of the
evidence (see People v Romero, 7 NY3d 633, 643 [2006]; People v
Bleakley, 69 NY2d 490, 495 [1987]). Further, we accord deference
to the jury's resolution of the credibility issues involved,
given its opportunity 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], lv denied 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 that he had ever been arrested despite the
existence of a mug shot and booking sheet prepared by 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 or charged with anything in
connection with the incident. Defendant also claims that Conto
lied when he denied being provided a benefit for his testimony
because there was evidence that a State Police captain had
written a letter requesting that the Department of Motor 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 executed at defendant's residence. As a
result, when Conto was unable to turn in the plates, his driver's
license was suspended. The letter was drafted in order to
rectify the situation and allow Conto's license to be reinstated.
These collateral issues were fully explored at trial and,
inasmuch as Conto's testimony regarding defendant's statements to
him was consistent, corroborated by other evidence and not
inherently incredible, we find no basis to disturb the jury's
credibility determination (see People v Jones, 101 AD3d 1241,
1242 [2012], lv denied 21 NY3d 944 [2013]; People v Chatham, 55
AD3d 1045, 1046 [2008], lv denied 14 NY3d 839 [2010]; People v
Lane, 47 AD3d 1125, 1126 [2008], lv denied 10 NY3d 866 [2008]).
                              -4-                104537

      With respect to the larceny convictions, a handwriting
expert testified unequivocally that all six checks were
forgeries. The expert also opined that they were consistent with
having been written by defendant. Further, a voided check from
the victim's business account and a sheet of paper with the
victim's name written out multiple times were found at
defendant's residence, suggesting that someone there had been
practicing signing the victim's name. The evidence also
conclusively established that defendant had personally cashed
each of the six forged checks at the bank. While defendant
argues that the six forged checks were consistent with the
victim's history of providing her with funds for her businesses,
an examination of defendant's business and personal accounts
revealed that she had not spent the money on her trucking
business, but had instead purchased, among other things, a car,
car trailer and camp property. The evidence also indicated that,
contrary to defendant's contention, the victim was unaware that
the checks had been written. He kept complete records of his
business account, including a record of various transactions in
May 2009 and three checks he had written to defendant in June
2009 to cover expenses related to her trucking business, but
there were no entries in his records for any of the six forged
checks in question. When initially informed by the bank of the
overdraft caused by the sixth check, the victim indicated 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 grand larceny in the third degree are
not against the weight of the evidence (see People v Brown, 107
AD3d 1145, 1147 [2013], lv denied 22 NY3d 1039 [2013]; People v
Farnsworth, 103 AD3d 982, 983-984 [2013]; People v Race, 78 AD3d
1217, 1221 [2010], lv denied 16 NY3d 835 [2011]).

      The evidence also supports the jury's determination that
defendant is guilty of murder in the first degree. According
deference to the jury's apparent acceptance of Conto's testimony,
defendant expressed her intent to "get rid of" the victim after
he confronted her about the money that she had stolen from his
account and threatened to tell the police. She went to the
victim's house with a loaded handgun and she was the last known
person to see him alive. Further, when she returned home, she
admitted to Conto that she had killed the victim in a manner
                              -5-                104537

consistent with how he was found. Although defendant initially
denied to the police that she had been to the victim's residence
on the night in question, she later admitted as much. While we
acknowledge that defendant was three inches shorter than the
victim, the evidence also established that she outweighed him by
30 pounds and was 19 years younger. Further, there was testimony
that she was strong enough 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 inhibition could not be ruled out, but we note
as well that he agreed with the essential finding of the People's
medical expert that the victim died as a result of being
strangled with a ligature by another person. Both experts
further agreed that the lack of any defensive wounds could be
explained by, among other things, the victim being strangled from
behind. Although defendant speculates that, given the lack of
any defensive wounds, the strangulation could have been a
consensual part of sexual activity with some other person after
she left his house that night, both experts agreed that the
existence of multiple ligature marks on the victim's neck was
consistent with some form of struggling. The postmortem cut on
the victim's wrist also indicates an attempt to cover up the
cause of death, consistent with defendant's statement to Conto.
Considering all of the evidence in a neutral light, we find no
basis to conclude that the verdict convicting defendant of murder
in the first degree is against the weight of the evidence (see
People v Dashnaw, 116 AD3d 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 was convicted of identity
theft in Louisiana in 2004 and, in determining the appropriate
sentence, County Court took into account the overwhelming
evidence that defendant coldly planned and carried out this
murder and has shown no remorse. Contrary to defendant's claim,
we find nothing in the record to indicate that County Court was
improperly vindictive or sought to punish her for exercising her
right to trial (see People v Mercado, 113 AD3d 930, 934 [2014];
People v Olson, 110 AD3d 1373, 1377 [2013]). Absent any apparent
                              -6-                  104537

abuse of discretion or extraordinary circumstance, we decline to
disturb the sentence (see People v Mattis, 108 AD3d 872, 876
[2013], lvs denied 22 NY3d 957 [2013]; People v Callicut, 101
AD3d 1256, 1265 [2012], lvs denied 20 NY3d 1096, 1097 [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 is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
