           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

982
KA 12-00715
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

SABRINA GUNTER, DEFENDANT-APPELLANT.


TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (DAVID V. SHAW OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered July 19, 2011. The judgment convicted defendant,
upon a jury verdict, of assault in the second degree and burglary in
the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of assault in the second degree (Penal Law §
120.05 [2]) and burglary in the second degree (§ 140.25 [2]). 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). The testimony of the
victim and an eyewitness, combined with the compelling physical
evidence recovered from defendant’s apartment and the testimony of the
witnesses with respect to defendant’s conduct before and after the
incident, amply supports the jury’s verdict. The jury was entitled to
credit the testimony of the victim and the eyewitness and reject that
of defendant (see generally People v Baker, 30 AD3d 1102, 1103, lv
denied 7 NY3d 846; People v Smith, 278 AD2d 837, 837, lv denied 96
NY2d 835). Contrary to defendant’s further contention, the sentence
is not unduly harsh or severe.




Entered:   September 27, 2013                      Frances E. Cafarell
                                                   Clerk of the Court
