| People v Pagan |
| 2011 NY Slip Op 06432 [87 AD3d 1181] |
| September 15, 2011 |
| Appellate Division, Third Department |
| the People of the State of New York,Respondent, v Aubrey (Alnutt) Pagan, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown (Melissa K. Johnson of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Fulton County (Giardino, J.),rendered March 1, 2010, upon a verdict convicting defendant of the crimes of insurance fraud inthe third degree, grand larceny in the third degree, conspiracy in the fourth degree, recklessendangerment in the second degree and conspiracy in the fifth degree.
In 2004, a fire destroyed an apartment building that was purportedly occupied by defendant,codefendant Victor Pagan and John Hart, and owned by defendant's father, codefendant JeffreyAlnutt. Defendant informed investigators that she may have caused the fire when she left herapartment's stove on unattended and, because other evidence was consistent with thatexplanation, the fire was initially deemed to have been accidental. Defendant, Pagan, Alnutt andHart thereafter made claims against their respective insurance policies.
Police subsequently reopened their investigation into the cause of the fire after newinformation was discovered and, after being granted immunity from prosecution, Hart admittedthat he had helped Alnutt set the fire as part of a plot to pursue fraudulent insurance claims.Pagan also contemplated accepting an offer of immunity by prosecutors, and told investigatorsthat he "had knowledge of" the fire and "was involved in it." He ultimately refused, however, tospeak further to police regarding the fire.[*2]
Alnutt, Pagan and defendant were thereafter charged inan indictment with numerous crimes arising from the plot. At the joint trial that ensued, Pagandid not testify, and his statements to investigators were admitted into evidence solely againsthim. Defendant was convicted of insurance fraud in the third degree, grand larceny in the thirddegree, reckless endangerment in the second degree, conspiracy in the fourth degree andconspiracy in the fifth degree. She was sentenced to an aggregate prison term of 1 to 3 years,ordered to pay restitution to her insurer, and now appeals.[FN1]
We affirm. Initially, we reject defendant's claim that her conviction was based upon legallyinsufficient evidence. Contrary to her argument, Hart's accomplice testimony was sufficientlycorroborated by other evidence that "tend[ed] to connect . . . defendant with thecommission of" the charged crimes (CPL 60.22 [1]; see People v Lee, 80 AD3d 877, 878 [2011], lv denied 16NY3d 832 [2011]). Compelling independent proof that defendant committed the chargedoffenses is not required to meet the corroboration requirement; rather, the evidence need only"tend[ ] to connect the defendant with the commission of the crime in such a way as mayreasonably satisfy the jury that the accomplice is telling the truth" (People v Dixon, 231NY 111, 116 [1921]; accord People vReome, 15 NY3d 188, 192 [2010]). In that regard, the People presented evidence thatdefendant purchased a renters insurance policy despite her precarious financial situation and,notably, increased her coverage shortly before the fire. Moreover, defendant admitted to herstepmother that she had not told investigators "what really happened," then instructed herstepmother to forget those comments. Defendant also sought to be reimbursed for possessionsthat were incongruous with her limited resources or belonged to other people but had beeninexplicably placed in her apartment, which was consistent with Hart's testimony that extraneousitems were placed in the apartments in order to inflate the insurance claims. The foregoingprovides the requisite "slim corroborative linkage to otherwise independently probative evidencefrom" Hart, thereby satisfying the corroboration requirement (People v Breland, 83 NY2d286, 294 [1994]; see People vGilbo, 52 AD3d 952, 953-954 [2008], lv denied 11 NY3d 788 [2008]). Nor canwe conclude, after evaluating the evidence in a neutral light and according deference to the jury'scredibility assessments, that the jury's verdict was against the weight of the evidence (see People v Berry, 78 AD3d1226, 1227-1228 [2010], lv denied 16 NY3d 828 [2011]).
Defendant next claims that her conviction of reckless endangerment in the second degree wasinconsistent with her acquittal of arson in the third degree. Defendant concedes that the verdict inthat regard was not "inherently self-contradictory" (People v Tucker, 55 NY2d 1, 8[1981]; see People v Hodges, 66AD3d 1228, 1231-1232 [2009], lv denied 13 NY3d 939 [2010]). She neverthelessargues that the acquittal of arson, when viewed in tandem with her conviction of conspiracy inthe fourth and fifth degrees and insurance fraud in the third degree, implies that the jury foundthat she had not started the fire either personally or acting in concert with others. Therefore,defendant maintains, she could not simultaneously be guilty of recklessendangerment—which, as charged herein, required a finding that she had recklessly startedthe fire. Conspiracy, however, "is an embracive crime, covering all of the overt acts andsubstantive crimes in the persisting criminal enterprise," and not necessarily the actualcommission of the crime that was the object of the conspiracy (People v Springer, 127AD2d 250, 256 [1987] [emphasis added], affd for reasons stated below 71 NY2d 997[1988]). Hence, contrary to defendant's [*3]argument, the jurywas not required to determine that defendant intentionally damaged the apartment building bysetting a fire in order to convict defendant upon the conspiracy counts; rather, the jury wasrequired to find that defendant committed an overt act in furtherance of the conspiracy(see Penal Law §§ 105.05, 105.10). Likewise, insurance fraud required afinding that defendant intentionally concealed the cause of the fire on her insuranceclaim, and the jury was not further obliged to find that she intended to damage the apartmentbuilding by setting the fire (see People v Michael, 210 AD2d 874, 874 [1994], lvdenied 84 NY2d 1035 [1995]; People v Amar, 134 AD2d 601 [1987]). As such, theverdict is not inconsistent.
Defendant additionally contends that her right to confront witnesses was violated by the useof Pagan's statements at the joint trial. In light of her reliance upon both Crawford vWashington (541 US 36 [2004]) and Bruton v United States (391 US 123 [1968]) tosupport that claim, a discussion of the interplay between those cases is required. InCrawford, the Supreme Court of the United States held "that the Confrontation Clausegenerally prohibits the use of 'testimonial' hearsay against a defendant in a criminal case,even if the hearsay is reliable, unless the defendant has a chance to cross-examine theout-of-court declarant" (People vGoldstein, 6 NY3d 119, 127 [2005] [emphasis added], cert denied 547 US 1159[2006]; see Crawford v Washington, 541 US at 59). There is no question that Pagan'sout-of-court statements, made to an investigator, were testimonial in nature (see Davis vWashington, 547 US 813, 822 [2006]; People v Rawlins, 10 NY3d 136, 147-148 [2008], certdenied 558 US —, 129 S Ct 2856 [2009]). Crawford accordinglyprohibits the use of Pagan's statements "against the other defendants in" this joint trial(United States v Ramos-Cardenas, 524 F3d 600, 609 [5th Cir 2008], certs denied555 US —, —, 129 S Ct 247, 403 [2008]). A codefendant, however,is generally not "considered to be a witness 'against' a defendant if the jury is instructed toconsider that testimony only against [the] codefendant," and nothing in Crawford altersthis long-established principle (Richardson v Marsh, 481 US 200, 206 [1987]; seeCruz v New York, 481 US 186, 190 [1987]; United States v Ramos-Cardenas, 524F3d at 607, 609-610; United States v Lung Fong Chen, 393 F3d 139, 150 [2d Cir 2004],certs denied 546 US 870 [2005]; People v Torres, 47 AD3d 851, 852 [2008], lv denied 10NY3d 817 [2008]). Thus, the Confrontation Clause is generally not implicated when acodefendant's statement is admitted "against" him or her alone.
Bruton sets out a narrow exception to this rule. Specifically, Bruton held thatthe Confrontation Clause prohibits the introduction of "the facially incriminatingconfession of a nontestifying codefendant . . . at their joint trial, even if the jury isinstructed to consider the confession only against the codefendant" (Richardson v Marsh,481 US at 207 [emphasis added]), because such statements are so powerfully incriminating andprejudicial "that limiting instructions cannot work" (Gray v Maryland, 523 US 185, 192[1998]; see Bruton v United States, 391 US at 135-136). The Bruton exception,as such, applies only when a codefendant's statement directly inculpates the accused. A statementthat incriminates only when linked with other trial evidence remains admissible (seeRichardson v Marsh, 481 US at 208-211; People v Lewis, 83 AD3d 1206, 1208 [2011]; People v Sutton, 71 AD3d 1396,1397 [2010], lv denied 15 NY3d 778 [2010]). In that instance, "while it may not alwaysbe simple for the members of a jury to obey the instruction that they disregard an incriminatinginference, there does not exist the overwhelming probability of their inability to do so that is thefoundation of Bruton's exception to the general rule" (Richardson v Marsh, 481US at 208; see United States v Lung Fong Chen, 393 F3d at 148-150; People v Dickson, 21 AD3d 646,647 [2005]). In short, if the statement does not directly inculpate the accused, it cannot bedeemed to have been admitted against him or her and "[t]he same attenuation. . . that prevents Bruton error also serves to prevent Crawforderror" (United States v Lung Fong Chen, 393 F3d at 150; see United States vHarris, 167 Fed [*4]Appx 856, 859 [2d Cir 2006], certdenied 549 US 925 [2006]; People v Torres, 47 AD3d at 852).
Here, Pagan's statements were admitted as evidence against him alone and the jury wasinstructed to that effect.[FN2]Nor did his statements implicate defendant. As noted above, Pagan stated that he "hadknowledge" of and "was involved in" the fire, giving rise to an inference that the fire was notaccidental. Defendant concedes that "it does not necessarily follow [from those statements] that[she] was also involved" in the arson. Rather, Pagan's statements only take on additional meaningwhen viewed in the light of other trial evidence that implicated defendant in the arson plot.Accordingly, Pagan's statements did not "identif[y] the defendant as the perpetrator of a crime"for purposes of Crawford or Bruton (People v Ruis, 11 AD3d 714, 714 [2004], lvs denied 4NY3d 747, 748 [2004]). Nor could the statements "be read by the jury [only] as inculpatingdefendant" under the facts of this case (People v Wheeler, 62 NY2d 867, 869 [1984]).Defendant, Pagan and Alnutt were tried together for the arson plot, Hart was admittedly involvedin it, and Pagan's statements could easily be read as implicating any or none of them (seePeople v Timberlake, 300 AD2d 219, 219-220 [2002], lv denied 99 NY2d 633[2003]; People v Adams, 225 AD2d 506, 506 [1996], lv denied 88 NY2d 932[1996]; cf. People v Reid, 82 AD3d1495, 1497-1498 [2011]). In short, Pagan's statements did "not implicate defendant in anywrongdoing," and their admission at trial did not deprive defendant of her right to confrontwitnesses against her (People v Lewis, 83 AD3d at 1208; see People v Dickson,21 AD3d at 647).
Defendant's remaining contention has been examined and found to be without merit.
Spain, Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Pagan and Alnutt were alsoconvicted of various crimes, and their appeals are currently pending before this Court.
Footnote 2: The fact that Pagan's statementswere not introduced as evidence against defendant makes this case readily distinguishable fromthose in which the plea allocution of an individual was admitted into evidence against adefendant at his or her trial on charges arising from the same incident, thus running afoul ofCrawford (compare People vHardy, 4 NY3d 192, 196-197 [2005], with People v Lewis, 83 AD3d at 1208).