| People v Pagan |
| 2012 NY Slip Op 05666 [97 AD3d 963] |
| July 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Victor A.Pagan, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown, for respondent.
Garry, J. 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 (two counts), grand larceny in the third degree (two counts), recklessendangerment in the second degree, conspiracy in the fourth degree and conspiracy in the fifthdegree.
In 2004, a three-unit apartment building in the City of Gloversville, Fulton County wasdestroyed by fire. The purported tenants of this building were defendant, codefendant AubreyPagan and John Hart, and codefendant Jeffrey Alnutt owned the building. Investigators initiallydetermined that the fire was accidental, but upon receiving new information in 2007, policereopened the investigation. Hart was granted immunity from prosecution and told police that he,defendant and Pagan had participated in a plot formulated by Alnutt to collect fraudulentinsurance proceeds by burning down the building and making the fire appear accidental. Duringthis period, defendant was in the U.S. Army, and stationed at Fort Bragg in North Carolina. Hespoke by telephone with a detective and the Fulton County District Attorney, admitting duringthe conversation that he "had knowledge of" the fire and "was involved in it." Defendant offeredto speak further with police upon his return to New York if he was granted immunity. Ultimately,he declined the offer of immunity and refused to speak further with investigators.
Defendant, Pagan and Alnutt were jointly indicted on multiple charges arising from the [*2]fire.[FN1]During their joint jury trial, defendant moved to suppress his statements from the telephoneconversation. County Court denied the motion and admitted the statements into evidence solelyagainst defendant. Defendant was convicted of insurance fraud in the third degree (two counts),grand larceny in the third degree (two counts), reckless endangerment in the second degree,conspiracy in the fourth degree and conspiracy in the fifth degree. He was sentenced to anaggregate prison term of 1
Initially, defendant contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence. Specifically, he argues that the testimonyof Hart—an accomplice as a matter of law—was insufficiently corroborated byevidence "tending to connect [him] with the commission of" the charged crimes (CPL 60.22 [1]).Corroborative evidence need not independently prove a defendant's involvement; the statutoryrequirements are satisfied if "read with the accomplice's testimony, [the evidence] makes it morelikely that the defendant committed the offense, and thus tends to connect him [or her] to it" (People v Reome, 15 NY3d 188,194 [2010]; see People v Berry, 78AD3d 1226, 1227 [2010], lv denied 16 NY3d 828 [2011]). Here, defendant admittedto police that he was involved in the fire. Additionally, the People showed that he purchasedrenter's insurance about a month before the fire, made a claim afterward and was paid$10,000.[FN2]There was evidence that the electrical service for the upstairs apartment where defendant claimedto live was in Alnutt's name and that defendant actually shared Pagan's downstairs apartment.Alnutt's former wife testified that neither defendant nor Pagan had leases until after the fire,when she prepared backdated leases at Alnutt's request. There was also evidence that defendantpurchased numerous items from a thrift shop in the months just before the fire, many of whichwere later found in the apartments; this was consistent with Hart's testimony that the plan calledfor placing furnishings in the apartments to drive up the insurance claims. Finally, a fireinvestigator testified that he found evidence of an "extreme burn pattern" caused by an unknownsubstance on a kitchen floor where Hart testified that he and Alnutt spread an accelerant whenthey started the fire. This and other evidence amply met the "minimal requirements" ofcorroborating evidence (People v Jones, 85 NY2d 823, 825 [1995]; accord People v Gilbo, 52 AD3d952, 954 [2008], lv denied 11 NY3d 788 [2008]). Thus, viewing the evidence in thelight most favorable to the People, we find "a valid line of reasoning and permissible inferencesthat could lead a rational person to the conclusion reached by the jury" (People v Vargas, 60 AD3d 1236,1237 [2009], lv denied 13 NY3d 750 [2009] [internal quotation marks and citationsomitted]; see People v Self, 75AD3d 924, 925 [2010], lv denied 15 NY3d 895 [2010]). There was some evidenceto rebut the People's proof, including the testimony of a fire investigator who provided alternateinterpretations of the burn-pattern evidence. Nonetheless, evaluating the evidence in a neutrallight, and according deference to the jury's credibility assessments, we find that the verdict wasnot against the weight of the evidence (see People v Berry, 78 AD3d at 1227).[*3]
Defendant next contends that his telephone statementsregarding his involvement in the fire should have been suppressed because he was subject tocustodial interrogation and was not given Miranda warnings. County Court determinedthat although defendant was interrogated, he was not in custody and therefore no Mirandawarnings were required. We agree. "The standard for assessing a suspect's custodial status iswhether a reasonable person innocent of any wrongdoing would have believed that he or she wasnot free to leave" (People vPaulman, 5 NY3d 122, 129 [2005] [citations omitted]). Factors to be considered includethe location, length and atmosphere of the questioning, whether police significantly restricteddefendant's freedom of action, the degree of defendant's cooperation, and whether the questioningwas accusatory or investigatory (seePeople v McCoy, 89 AD3d 1218, 1219 [2011], lv denied 18 NY3d 960 [2012];People v Johnston, 273 AD2d 514, 515 [2000], lv denied 95 NY2d 935 [2000]).During the Huntley hearing, a police sergeant testified that defendant—who knewthe sergeant personally—telephoned him at home and said that he had heard thatinvestigators wanted to talk with him, and that he did not want them to come to North Carolinabut would speak with them when he was in New York on leave. The sergeant agreed to forwardthe request to investigators, and did so. A detective testified that the Fulton County DistrictAttorney subsequently asked him to be present in her office during a telephone call fromdefendant in North Carolina. The call was received by speaker phone, and the detective and theDistrict Attorney spoke with defendant and Joel Abelove, who identified himself as an attorneywith the Judge Advocate General's office and, according to the detective, said that he wasrepresenting defendant. The detective told defendant he wanted to speak with him about the fire.Defendant responded that he had some involvement in it and would talk with police about it inNew York, but only if he received immunity and no investigators went to North Carolina. Thedetective agreed, and the District Attorney arranged to email an immunity agreement to Abelove.The detective acknowledged that he did not administer Miranda warnings.
Defendant testified that Abelove was not his attorney, directed him to speak with the DistrictAttorney about the fire, and never told him that he did not have to participate in the conversation.Defendant testified that he ended the conversation by asking investigators not to come to FortBragg; he acknowledged that no one did so and that an immunity agreement was sent to Abelove.We note that this conversation took place while defendant was hundreds of miles away frompolice in another state, and defendant could have ended it at any time simply by hanging up thephone (compare People v Scott, 269 AD2d 96, 98 [2000], lv denied 95 NY2d892 [2000]). Defendant did in fact end the conversation on his own terms, after obtaining theagreement he had initially requested. The conversation lasted only a few minutes, and thequestioning was limited to the detective's statement that he wanted to speak to defendant aboutthe fire. Accordingly, County Court correctly determined that a reasonable person would nothave believed that he or she was in custody during this conversation, and that Mirandawarnings were not required (comparePeople v Hook, 80 AD3d 881, 882-883 [2011], lv denied 17 NY3d 806 [2011];People v Lowin, 71 AD3d1194, 1195-1196 [2010]; People vNeil, 24 AD3d 893, 893-894 [2005]).[FN3][*4]
We reject defendant's contention that he did not receive afull Huntley hearing. Although County Court referenced making a "thresholddetermination," a complete hearing was in fact conducted. The record reveals that both partieshad a full and fair opportunity to present evidence and cross-examine witnesses, such that theproceeding constituted "an adequate evidentiary hearing productive of reliable results"(Jackson v Denno, 378 US 368, 394 [1964]; see People v Hamlin, 71 NY2d 750,761 [1988]; People v Huntley, 15 NY2d 72, 78 [1965]). Further, contrary to defendant'scontention, it was not necessary to determine whether Abelove had acted as his attorney, as theright to counsel had not yet attached at the time of the telephone conversation (see People vRamos, 99 NY2d 27, 32-33 [2002]; People v Caruso, 34 AD3d 860, 861-862 [2006], lv denied8 NY3d 879 [2007]).
The detective's trial testimony that Abelove said he was defendant's attorney did notconstitute testimonial hearsay in violation of the Confrontation Clause of the Sixth Amendment,as the statement was not pertinent to defendant's guilt or innocence of any element of the chargedcrimes and did not " 'establish or prove past events potentially relevant to later criminalprosecution' " (People v Hulbert, 93AD3d 953, 953 [2012], quoting Davis v Washington, 547 US 813, 822 [2006]).Finally, we reject defendant's contention that County Court erred by denying his request for acircumstantial evidence charge. While such instructions are required when all of the elements ofthe charges against a defendant depend entirely on circumstantial evidence, here all of thecharges were also supported by direct evidence, including Hart's accomplice testimony (see People v Saxton, 75 AD3d755, 758 [2010], lv denied 15 NY3d 924 [2010]; People v Rosica, 199AD2d 773, 774 [1993], lv denied 83 NY2d 876 [1994]; People v McDermott,185 AD2d 384, 386 [1992], lv denied 80 NY2d 906 [1992]; see also People vWalker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]).
Peters, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant married Pagan in2006. Pagan and Alnutt, her father, were convicted of several crimes arising from the fire. Thejudgment against Pagan was previously affirmed (People v Pagan, 87 AD3d 1181 [2011], lv denied 18 NY3d885 [2012]).
Footnote 2: An investigator testified that itwas unusual for tenants in the Gloversville area to carry such insurance.
Footnote 3: Defendant also argues that thedetective should have known that his statements to defendant were reasonably likely to elicit anincriminating response; however, this standard applies to whether an interrogation has occurred,not to whether a defendant is in custody (see People v Ferro, 63 NY2d 316, 322-323[1984], cert denied 472 US 1007 [1985]; People v Van Patten, 48 AD3d 30, 34 [2007], lv denied 10NY3d 845 [2008]).