State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 14, 2016 106748
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KEVIN J. HOPKINS,
Appellant.
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Calendar Date: February 19, 2016
Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.
__________
Samuel D. Castellino, Big Flats, for appellant.
Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella
of counsel), for respondent.
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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
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aggregate prison term of eight years, followed by five years of
postrelease supervision.1 Defendant now appeals.
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 AD3d 1040, 1043 [2015], lv denied 25 NY3d
1160 [2015], quoting People v Mitchell, 57 AD3d 1308, 1309
[2008]; see People v McCray, 102 AD3d 1000, 1003-1004 [2013],
affd 23 NY3d 193 [2014]). Thus, after "weighing the evidence and
1
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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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 AD3d 975, 978
[2013], lv denied 22 NY3d 1203 [2014]; see People v Capers, 129
AD3d 1313, 1315 [2015]; People v Pine, 126 AD3d 1112, 1115-1116
[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 AD3d 1145, 1147-1148
[2008], lv denied 11 NY3d 899 [2008]; People v Johnson, 213 AD2d
791, 793 [1995], lv denied 85 NY2d 975 [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 AD3d 1119, 1123 [2011], lv denied 17 NY3d
806 [2011]; People v Rose, 72 AD3d 1341, 1346 [2010], lv denied
16 NY3d 745 [2011]).
Peters, P.J., Garry, Lynch and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court