Opinion
106748.
04-14-2016
The PEOPLE of the State of New York, Respondent, v. Kevin J. HOPKINS, Appellant.
Samuel D. Castellino, Big Flats, for appellant. Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella of counsel), for respondent.
Samuel D. Castellino, Big Flats, for appellant.
Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, LYNCH and CLARK, JJ.
ROSE, J. Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered March 10, 2014, upon a verdict convicting defendant of the crimes of burglary in the second degree, attempted assault in the third degree and endangering the welfare of a child (two counts).
Defendant was charged in connection with an incident where he and another individual entered a residence and attacked a male victim—an acquaintance of defendant—in the presence of the victim's fiancée and her two young children. Following a jury trial, defendant was convicted of one count of burglary in the second degree, one count of attempted assault in the third degree and two counts of endangering the welfare of a child. He was subsequently sentenced, as a second felony offender, to an aggregate prison term of eight years, followed by five years of postrelease supervision. Defendant now appeals.
Defendant also pleaded guilty to unlawful manufacture of methamphetamine in the third degree in satisfaction of a separate indictment not at issue on appeal. His sentence for that conviction runs concurrently with the sentence associated with the judgment on appeal.
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Defendant's conviction was not against the weight of the evidence. At trial, the People presented the testimony of the victim, who stated that, on the date of the incident, he sent a text message to defendant stating, “I don't want you ... around my house or my kids anymore.” Shortly thereafter, defendant responded by entering the victim's home without knocking or ringing the doorbell, rushing at the victim and punching him three times in the head and face, “right in front of [his fiancée's] kids.” According to the victim, the third punch knocked him unconscious, and the attack caused him to suffer a broken nose, two black eyes and a chipped tooth. The victim's fiancée, an eyewitness to the incident, also testified at trial and largely corroborated the victim's story, including the details of defendant's unannounced entry into the residence, the specifics of the attack and the fact that her children were present when it occurred. The fiancée further testified that, after defendant's first punch, she told defendant he needed to leave, and he responded that she should take her children out for a walk.
In response, defendant contends that the victim and the fiancée were incredible witnesses because of various inconsistencies between their initial statements to police, their grand jury testimony and their testimony at trial. However, “the conflicts and inconsistencies in the testimony,” which were thoroughly explored by defense counsel during cross-examination, “created ‘classic credibility issue[s] for the jury to resolve’ ” (People v. Brabham, 126 A.D.3d 1040, 1043, 4 N.Y.S.3d 386 [2015], lv. denied 25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015], quoting People v. Mitchell, 57 A.D.3d 1308, 1309, 871 N.Y.S.2d 445 [2008] ; see People v. McCray, 102 A.D.3d 1000, 1003–1004, 958 N.Y.S.2d 511 [2013], affd. 23 N.Y.3d 193, 989 N.Y.S.2d 649, 12 N.E.3d 1079 [2014] ). Thus, after “weighing the evidence and conflicting accounts of the [incident] in a neutral light and according deference to the jury's first-hand credibility assessments,” we find that the verdict is in accord with the weight of the evidence (People v. Simmons, 111 A.D.3d 975, 978, 974 N.Y.S.2d 185 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ; see People v. Capers, 129 A.D.3d 1313, 1315, 12 N.Y.S.3d 317 [2015] ; People v. Pine, 126 A.D.3d 1112, 1115–1116, 4 N.Y.S.3d 746 [2015] ).
Defendant's challenge to County Court's Sandoval ruling is unpreserved for our review, as he failed to object to it at the pretrial hearing (see People v. Phillips, 55 A.D.3d 1145, 1147–1148, 865 N.Y.S.2d 787 [2008], lv. denied 11 N.Y.3d 899, 873 N.Y.S.2d 275, 901 N.E.2d 769 [2008] ; People v. Johnson, 213 A.D.2d 791, 793, 623 N.Y.S.2d 418 [1995], lv. denied 85 N.Y.2d 975, 629 N.Y.S.2d 735, 653 N.E.2d 631 [1995] ). Finally, there is no merit to defendant's claim that his sentence was unduly harsh or excessive. In imposing the sentence, which was well below the statutory maximum, County Court appropriately considered a number of favorable factors, as well as the violent nature of defendant's actions and his lengthy criminal record. In short, our review reveals no abuse of discretion or extraordinary circumstances warranting a sentence reduction (see People v. Francis, 83 A.D.3d 1119, 1123, 922 N.Y.S.2d 581 [2011], lv denied 17 N.Y.3d 806, 929 N.Y.S.2d 565, 953 N.E.2d 803 [2011] ; People v. Rose, 72 A.D.3d 1341, 1346, 899 N.Y.S.2d 414 [2010], lv. denied 16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, LYNCH and CLARK, JJ., concur.