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

582
KA 12-01076
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBIN KALINOWSKI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     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, of murder in the second degree.

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

     Memorandum: On appeal from a judgment convicting her following a
jury trial of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that 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 those
contentions. Defendant was charged with intentionally killing her
husband by shooting him 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 gun discharged
accidently when she picked it up off of the bed, and that she did not
intend to kill the victim. The evidence at trial established,
however, that the victim sustained a contact wound to the back of his
head, which is not consistent with defendant’s claim that the gun
accidently discharged when she picked it up off of the bed. According
to defendant’s reenactment of the shooting, which was videotaped by
the police and played for the jury, defendant was holding the rifle in
a manner such that its barrel would not come into direct contact with
the victim’s head.

     Moreover, the medical evidence established that the bullet
entered the victim’s skull near the middle of his head and traveled
downward toward the base of the skull. If the shooting 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 rifle testified that it was in proper working
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                                                         KA 12-01076

condition, which is contrary to defendant’s assertion that the gun
needed to be fixed and that the victim was fixing it in the bedroom on
the night of the shooting. The expert further testified that it took
five to seven pounds of 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 claim that the rifle discharged when it slipped out of her
hands.

     The People also presented evidence that the victim, an
experienced hunter, was very safe with his guns and would not have
left a loaded rifle on his bed with the safety in the off position.
Defendant’s own brother described the victim at trial as “Mr. Safety.”
In addition, defendant told inconsistent stories about how the
shooting occurred, and she made numerous admissions to fellow inmates
while in jail awaiting trial. Finally, although defendant told the
police that there were no problems with her marriage, the People
presented evidence at trial that she was having an affair with another
man when the victim was shot, and that after the shooting she told her
paramour not to tell the police about their affair. When defendant
learned that the paramour intended to testify for the prosecution at
trial, defendant conspired with an undercover police officer, who
defendant thought was a hit man, to have her paramour murdered.
Defendant later pleaded guilty to conspiracy in the second degree as a
result of her attempt to murder the witness, and evidence of her plea
was entered at trial.

     Viewing the evidence in the light most favorable to the People,
as we must (see People v Contes, 60 NY2d 620, 621), we conclude that
there is a “valid line of reasoning and permissible inferences which
could lead a rational person to the conclusion reached by the jury on
the basis of the evidence at trial,” i.e, that defendant intended to
kill the victim (People v Bleakley, 69 NY2d 490, 495; see People v
Cooper, 59 AD3d 1052, 1052-1053, lv denied 12 NY3d 852; People v Tyes,
30 AD3d 1045, 1046, lv denied 7 NY3d 795). Based upon our independent
review of the evidence pursuant to CPL 470.15 (5), and viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we further conclude that
the verdict is not contrary to the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). Although a different verdict
would not have been unreasonable in light of defendant’s testimony
that the shooting was accidental, “the jury was in the best position
to assess the credibility of the witnesses and, on this record, it
cannot be said that the jury failed to give the evidence the weight it
should be accorded” (People v Orta, 12 AD3d 1147, 1147, lv denied 4
NY3d 801; see People v Canfield, 111 AD3d 1396, 1397, lv denied 22
NY3d 1087; People v Woods, 26 AD3d 818, 819, lv denied 7 NY3d 765).

     We reject defendant’s further contention that Supreme Court erred
in allowing the People to present evidence at trial of her conspiracy
to murder her former paramour in order to prevent him from testifying
at trial. Evidence that defendant attempted to kill a prosecution
witness is admissible as evidence of her consciousness of guilt (see
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                                                         KA 12-01076

People v Pawlowski, 116 AD2d 985, 986, lv denied 67 NY2d 948; see also
People v Arguinzoni, 48 AD3d 1239, 1240, lv denied 10 NY3d 859; People
v Maddox, 272 AD2d 884, 885, lv denied 95 NY2d 867), and its
prejudicial effect did not outweigh its probative value (see generally
People v Ventimiglia, 52 NY2d 350, 359-360).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
