| People v Stevens |
| 2011 NY Slip Op 03681 [84 AD3d 1424] |
| May 5, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AndreaStevens, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Bassile of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Cortland County (Campbell,J.), rendered March 11, 2010, upon a verdict convicting defendant of the crime of arson in thethird degree, and (2) from an order of said court, entered July 22, 2010, which amended thejudgment of conviction to specify the amount of restitution owed by defendant.
Defendant rented space for her retail store—Smooches—in the first floor of athree-story building located at 51-53 Main Street in the City of Cortland, Cortland County. An artgallery was located on the second floor and two residential apartments were located on the thirdfloor. Another business—Shangri-La—occupied the retail space next door toSmooches. Smooches and Shangri-La shared a common hallway between the two businesses, andinside this common hallway was a stairway leading to the basement. In the early evening hours ofOctober 19, 2005, a fire substantially damaged Smooches, the two upper floors and Shangri-La.A grand jury thereafter indicted defendant on the charge of arson in the third degree and,following a jury trial, she was convicted as charged and sentenced to a prison term of 1 to 3years. After a subsequent restitution hearing, County Court ordered that defendant pay restitutionin the amount of $153,571.74, and the judgment of conviction was amended to reflect thisamount. Defendant [*2]now appeals from the judgment ofconviction and the subsequent amendment thereto.[FN*]
Initially, defendant's challenge to the legal sufficiency of the evidence presented to the grandjury is precluded given that her conviction is based upon what we view as legally sufficient trialevidence (see CPL 210.30 [6]; People v Bastian, 83 AD3d 1468;, 1468 [2011];People v Leonard, 83 AD3d 1113, 1116 [2011]; People v Dowling, 75 AD3d 838, 840 [2010], lv denied 15NY3d 952 [2010]).
Defendant next contends that her conviction is against the weight of the evidence in that thePeople failed to prove beyond a reasonable doubt that she intentionally set fire to the building."Inasmuch as a different verdict would not have been unreasonable, we must, like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Dixon, 62 AD3d 1036,1038 [2009], lv denied 12 NY3d 912 [2009] [internal quotation marks and citationsomitted]; see People v Molina, 79AD3d 1371, 1374-1375 [2010]; People v Richardson, 55 AD3d 934, 935 [2008], lvdismissed 11 NY3d 857 [2008]; People v Cushner, 46 AD3d 1121, 1123 [2007], lv denied10 NY3d 809 [2008]). In essence, we "sit[ ] as a thirteenth juror and decide[ ] which facts wereproven at trial and, in light of those facts, whether the elements of the crimes charged have beenproven beyond a reasonable doubt" (People v Wilson, 78 AD3d 1213, 1216 [2010], lv denied 16NY3d 747 [2011] [internal quotation marks and citations omitted]; see People v Danielson, 9 NY3d342, 348-349 [2007]; People vDean, 70 AD3d 1193, 1194 [2010]).
Here, fire investigators concluded that the fire had originated in the first-floor commonhallway located between Shangri-La and Smooches and that, as evidenced by two burn holes onthe floor of the hallway, the cause of the fire was consistent with the introduction of an ignitableliquid in that area. An investigator with the State Office of Fire Prevention and Control visitedthe scene the day after the fire with Booka, a K-9 dog trained to detect ignitable liquids. At thattime, Booka indicated that there was ignitable liquid vapor present in the area of the two burnholes on the floor. Subsequent forensic testing of floor samples taken from the area near the burnholes confirmed the presence of heavy petroleum distillates—consistent with kerosene,lighter fluids or other ignitable fluids—and terpenes. Fire investigators also ruled out allelectrical, mechanical, natural and accidental heat sources and concluded that no natural oraccidental ignition sources could be identified.
Defendant testified that she closed Smooches at 5:00 p.m. on the day of the fire to havedinner with her family at a nearby restaurant, but then, on her way home, returned to Smoochesbetween 6:10 p.m. and 6:15 p.m. to use the bathroom. Defendant testified that, at that time, sheneither smelled nor saw smoke. However, Bonnie Titus, an employee of a neighboring businesslocated approximately one block away, testified that as she walked home past the building whereSmooches and Shangri-La were located at approximately 6:15 p.m., she noticed a very strongodor of wood smoke. When Titus arrived at her nearby apartment only minutes later, sheobserved that the building where Smooches was located was on fire. The fire was reported at6:19 p.m. and firefighters arrived at the scene within approximately three minutes, at which timethey observed heavy smoke emanating from the back of the building in the area of the secondfloor and from the front of the building in the area between Smooches and Shangri-La. Besides[*3]defendant, no one else was in the building at the time of thefire—other than an elderly tenant who resided on the third floor and did not have access tothe common hallway.
The evidence also established that defendant was experiencing financial trouble at the timeof the October 2005 fire. Specifically, defendant owed the Internal Revenue Service $100,000and owed the State of New York $3,000. Defendant also recently had incurred several overdraftfees with respect to Smooches' bank account and, at one point, the account had a negativebalance. Earlier that year, defendant filed for bankruptcy after her mortgage companycommenced foreclosure proceedings on the family residence. Significantly, nine days before thefire, defendant doubled the insurance limits for contents under Smooches' business owner'sinsurance policy from $50,000 to $100,000. "While motive evidence does not establish anyelement of the crime, and cannot take the place of proof of the accused's actual commission ofthe crime, such evidence cannot be ignored" (People v Cushner, 46 AD3d at 1124[internal quotation marks and citation omitted]; compare People v Richardson, 55 AD3dat 937).
Viewing this evidence in a neutral light and giving the appropriate deference to the jury'scredibility determinations, we find that the jury's verdict was not against the weight of theevidence (see Penal Law § 150.10 [1]; People v Self, 75 AD3d 924, 926 [2010], lv denied 15NY3d 895 [2010]; People v Cushner, 46 AD3d at 1124; People v Labar, 278AD2d 522, 523 [2000]). To the extent that defendant's arson investigator testified—incontrast to the opinions provided by the People's witnesses—that the fire started in theceiling between the first and second floors of the common hallway and that an electrical causecould not be ruled out, that testimony presented a credibility determination for the jury (see People v Demagall, 63 AD3d34, 38 [2009], lv denied 12 NY3d 924 [2009]).
Next, viewing defense counsel's performance in its totality (see People v Cummings, 16 NY3d784, 785 [2011]), we are unpersuaded that counsel's candid admission—that heincorrectly advised defendant that probation was a possible sentence when, in fact, defendantfaced a minimum of one year in prison if convicted (see Penal Law § 70.00 [1], [3][b])—rises to the level of ineffective assistance of counsel (see People v Modica,64 NY2d 828, 829 [1985]; People vTatum, 82 AD3d 1411, 1411 [2011]; People v Palma, 305 AD2d 333, 334[2003], lv denied 100 NY2d 644 [2003]). In any event, defendant failed to establish thatshe was prejudiced by this mistake and that, but for said error, an acceptable plea bargain wouldhave been struck—particularly in light of her repeated claims of innocence and the factthat defendant, through counsel, advised the court that she would not accept a plea (see People v Thomson, 46 AD3d939, 940 [2007], lv denied 9 NY3d 1039 [2008]).
Finally, contrary to defendant's argument, County Court properly fixed the amount ofrestitution insofar as it awarded Jared Troutman—one of the galleryowners—$2,000 for counseling costs incurred as a result of the fire and awarded SheldonGosline—the owner of Shangri-La—$130,997.57 in business losses. "At arestitution hearing, the People bear the burden of proving the victim's out-of-pocketloss—the amount necessary to make the victim whole—by a preponderance of theevidence" (People v Tzitzikalakis, 8NY3d 217, 221 [2007] [citations omitted]; see Penal Law § 60.27; Peoplev Horne, 97 NY2d 404, 410-411 [2002]; People v Russell, 41 AD3d 1094, 1096 [2007], lv denied 10NY3d 964 [2008]). Moreover, at the restitution hearing, "[a]ny relevant evidence is admissibleunless privileged regardless of its admissibility under the rules of evidence" (People vConsalvo, 89 NY2d 140, 145 [1996]). Contrary to defendant's assertion, Troutman's sworntestimony—that the out-of-pocket expenses for counseling services sought for himself andhis wife between January 2010 and May 2010 [*4]totaledapproximately $1,000 for each of them—was sufficient to establish the loss incurred (see People v Senecal, 31 AD3d980, 980-981 [2006]; People vPeriard, 15 AD3d 693, 694 [2005]). We also find that the spreadsheet compiled byGosline itemizing the losses sustained by Shangri-La as a result of the fire, together withGosline's testimony that each item that was destroyed was located inside the building at the timeof the fire, sufficiently established the losses claimed (see People v Ford, 77 AD3d 1176, 1177 [2010]).
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment and orderare affirmed, and matter remitted to the County Court of Cortland County for further proceedingspursuant to CPL 460.50 (5).
Footnote *: County Court granteddefendant's motion to stay the sentence pending appeal.