Convict to appeal ruling to state’s highest court

PHOTOGRAPHER: Steven Cook

The attorney for a Schenectady babysitter convicted of a top-level assault count said Friday she intends to appeal to the state’s highest court following a loss this week in a lower court.

The attorney, Karen Crandall, said she believes the case raises significant constitutional questions regarding a defendant’s right to refuse a search and how that can or can’t be used at trial.

The Appellate Division of state Supreme Court, though, decided this week that they didn’t believe the issues raised by Crandall were significant enough to overturn the conviction.

The court upheld the first-degree assault conviction against Rebecca Polomaine.

The court appeared to focus its ruling on the weight of the evidence.

The court only briefly referenced the search issue, finding it didn’t warrant reversal of the conviction.

Crandall, though, believes that issue would interest Court of Appeals justices.

In the appeal, Crandall argued that, like a defendant invoking his right to remain silent, the fact that Polomaine refused a full search should not have been used against her at trial.

Gerald Dwyer, of the Schenectady County District Attorney’s office, though, countered that the defense failed to object during the trial, and that the search was central to the defense’s strategy of painting the police investigation as lacking.

Polomaine is currently serving 18 years in state prison after her 2008 conviction.

A Schenectady County Court jury concluded it was Polomaine, and not another child, who caused serious and lasting injuries to then-2-year-old Riley Gilbert on March 27, 2007.

Prosecutors contended Polomaine smashed Riley’s skull while the girl was in her care.

At the time of Polomaine’s July 2008 sentencing, prosecutors showed a video of Riley, then 3. She was unable to walk or talk as a result of the attack. She also couldn’t feed herself and was legally blind.

Polomaine, who has maintained her innocence throughout, once rejected a plea-bargain offer that would have sent her to prison for five years.