| People v Nesbitt |
| 2010 NY Slip Op 00404 [69 AD3d 1109] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AnthonyNesbitt, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered October 20, 2006, upon a verdict convicting defendant of the crimes of attemptedarson in the second degree, aggravated harassment in the second degree, endangering the welfareof a child (five counts), resisting arrest and obstructing governmental administration in thesecond degree.
On November 8, 2005, defendant threatened to set fire to an apartment house in the City ofSchenectady, Schenectady County where his two young children (born in 2001 and 2003) wereliving with their mother, defendant's former fiancÉe. The mother and the children, togetherwith a neighbor and her young child (born in 2002), had just returned to the apartment housefrom shopping at approximately 8:15 that evening. An area of the building's wooden porch wassoaked with gasoline. Immediately upon entering the neighbor's apartment, the mother received atelephone call from defendant in which he threatened to burn her up. The call caused the motherto believe that defendant, who did not live in the immediate vicinity, had observed their return tothe apartment and was still in the area. The mother called the police, who responded togetherwith fire department personnel and equipment. The potential fire hazard was resolved. Themother filed a complaint against defendant with the police and obtained a protective orderrequiring defendant to stay away from her and their children. Warrants were issued fordefendant's arrest.
On December 13, 2005, defendant's children were with defendant, with the mother'spermission, while she was at work. The mother testified that the maternal grandmother, whousually watched the children when the mother was at work, was sick that day and no one elsewas available to watch them. Because the mother was still on probationary status at her new job,she could not afford to miss work, so she asked defendant to watch them.[FN*]Officers from Child Protective Services contacted defendant in person that day and informed himof the protective order. Defendant denied that the children were with him and refused to allowthe officers in the house. Later that day, he took the children to the mother's apartment withouther knowledge. When officers from Child Protective Services and the police arrived at themother's apartment, defendant refused to answer the door or let them in. After a prolongedstand-off, the police forcibly entered the apartment, with guns drawn, and located defendant andthe children in a bedroom. While standing next to his children, defendant challenged police toshoot him. Defendant was ultimately subdued, handcuffed and placed under arrest. After beingtransported to the police station, defendant initially refused to provide police with his pedigreeinformation.
As a result of the foregoing, the grand jury issued a 13-count indictment. After a jury trial,defendant was convicted of attempted arson in the second degree, aggravated harassment in thesecond degree, and three counts of endangering the welfare of a child in connection with theevents of November 8, 2005. He was also convicted of two counts of endangering the welfare ofa child and one count each of resisting arrest and obstructing governmental administration in thesecond degree in connection with the events of December 13, 2005. This appeal ensued.
Defendant's challenge to the legal sufficiency of the evidence supporting his convictions wasnot properly preserved for appellate review by defendant's general trial motion to dismiss allcharges at the close of the People's evidence (see People v Finger, 95 NY2d 894, 895[2000]; People v Bynum, 70 NY2d 858, 859 [1987]; see generally People vGray, 86 NY2d 10, 19-22 [1995]). Nevertheless, we are required to examine the sufficiencyof the proof in light of the elements charged as part of our independent review of the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Caston, 60 AD3d 1147, 1148-1149 [2009]; People v Loomis, 56 AD3d 1046,1046-1047 [2008]). In determining whether the verdict is properly supported, we review "all thecredible evidence" (People v Bleakley, 69 NY2d 490, 495 [1987]), including evidencesubmitted by the defense (see generally People v Hines, 97 NY2d 56, 61 [2001]), toascertain whether such evidence was accorded the proper weight by the jury. In so doing, weview the evidence from a neutral perspective, according appropriate deference to the jury'scredibility determinations (see People v Bleakley, 69 NY2d at 495; People v Barringer, 54 AD3d 442,443 [2008], lv denied 11 NY3d 830 [2008]; People v Figueroa, 53 AD3d 779, 780 [2008], lv denied 11NY3d 832 [2008]).
The only evidence directly connecting defendant to the events in Schenectady on November8, 2005 comes from the mother's trial testimony and the tape of her 911 call in which sheidentifies defendant as having just called her to say that he saw her enter the house, admittedpouring gas on the porch and hoped that she burned. Defendant testified at trial and admittedcalling the mother, but claimed he was in the City of Albany at the time and was just calling toinquire about their son's winter boots, thereby placing defendant's credibility in issue. Phonerecords and testimony from the mother and a police officer who was with the mother at thepolice station at the time that defendant claimed to be speaking with her on the phone in herneighbor's apartment all combined to render defendant's alibi testimony utterly incredible, anddisproved the alibi beyond a reasonable doubt. Further evidence tending to support theconclusion that defendant was the perpetrator of the attempted arson was admitted under CountyCourt's Molineux ruling, which established a pattern of violent assaults by defendant onthe mother in the presence of their children. Police and fire department officers confirmed thepresence of gasoline on the porch, and the presence of the mother, her neighbor and the childrenin the apartment building. Charles Adams, a veteran lieutenant with the Schenectady FireDepartment who responded to the scene, testified persuasively that, based on his experience andtraining in arson investigations, he determined that the gasoline soak pattern on the porchreflected a pour, rather than a spill, and was indicative of attempted arson. He also testified thatif the gasoline had ignited, flames would have quickly traveled up the staircase, trapping theoccupants on the upper floors of the building.
Officers from both Child Protective Services and the Schenectady Police Departmenttestified regarding the events of December 13, 2005. The testimony established that defendantmisled Child Protective Services that morning by denying that the children were with him at hismother's home, and that he subsequently took the children to their mother's apartment, where, forat least 20 to 25 minutes, he refused to respond to police demands that he open the door.Ultimately, the police had to forcibly enter the apartment. Several police witnesses establishedthat defendant refused to cooperate when police entered with guns drawn, and that he escalatedthe dangerous situation by challenging the police to shoot him in front of the children, who weresitting next to him in the small, dimly lit bedroom where the police encountered them. Policeemployed pepper spray in the small room, but were able to avoid harm to the children.Defendant, who admitted that he was aware of at least one of his outstanding arrest warrants atthe time, continued to physically resist and verbally abuse the police officers trying to effectuatethe arrest warrants, even after pepper spray and handcuffs were employed to subdue him. He alsoadmitted that while being processed at the police station, when asked for pedigree information,he initially refused to answer legitimate questions posed by the police. Based on the foregoing,we find that defendant's convictions are amply supported by the weight of the credible evidence.
Prior to imposing defendant's sentence, County Court considered the trial evidence andcomments by the prosecutor, defense counsel and defendant, as well as defendant's probationreport and prior criminal history, which consisted of several misdemeanor convictions anddisregard of prior court orders. County Court noted defendant's history of violence toward themother and that his affection for his children was marred by his poor judgment. The court alsonoted that defendant did not ignite the gasoline on the porch during the attempted arson.Defendant was sentenced to a prison term of six years on the attempted arson conviction,concurrent terms of one year on each of the remaining convictions, and three years of postreleasesupervision. County Court also imposed an order of protection requiring defendant to stay awayfrom the mother and their children, subject to any court ordered visitation. We find no abuse ofdiscretion in the sentence imposed on defendant as a first time violent felony offender, nor anyextraordinary circumstances warranting a reduction in the interest of justice (see People vKrug, 282 AD2d 874, 880 [2001], lv denied 98 NY2d 652 [2002]).
Defendant's remaining contentions were not preserved for our review. Were we to considerthem, we would find them to be without merit.
Cardona, P.J., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: For placing the children indefendant's care, the mother was charged with and pleaded guilty to endangering the welfare of achild and disorderly conduct. In exchange for her trial testimony, the endangerment charge wasdismissed and the mother was sentenced to time served on the disorderly conduct charge.