| People v Alnutt |
| 2012 NY Slip Op 09096 [101 AD3d 1461] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey Alnutt,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 arson in the thirddegree, insurance fraud in the second degree, insurance fraud in the third degree (two counts),grand larceny in the second degree, grand larceny in the third degree (two counts), recklessendangerment in the second degree, conspiracy in the fourth degree and conspiracy in the fifthdegree.
In January 2004, a fire destroyed an apartment building in the City of Gloversville, FultonCounty that was owned by defendant and purportedly occupied by codefendant Aubrey Pagan,who is defendant's daughter (hereinafter the daughter), codefendant Victor Pagan (hereinafter theson-in-law) and John Hart.[FN1]The fire was initially determined to be accidental, but the investigation was later reopened andHart was granted immunity from prosecution. He [*2]told policethat he had helped defendant set the fire as part of a plot devised by defendant to collectfraudulent insurance proceeds in which the daughter and son-in-law had also participated.
Defendant, the daughter and the son-in-law were charged in a joint indictment with crimesarising from the fire. Following a joint jury trial, defendant was convicted of arson in the thirddegree, insurance fraud in the second degree, insurance fraud in the third degree (two counts),grand larceny in the second degree, grand larceny in the third degree (two counts), recklessendangerment in the second degree, conspiracy in the fourth degree and conspiracy in the fifthdegree. Defendant's motion to set aside the verdict pursuant to CPL 330.30 was denied and hewas thereafter sentenced to an aggregate prison term of 5 to 15 years and ordered to payrestitution. Defendant appeals.
Initially, defendant contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence because the testimony of Hart, anaccomplice as a matter of law (see CPL 60.22 [2] [a]), was insufficiently corroborated.We disagree, finding that the People met their burden to offer credible, probative evidence thatcorroborated Hart's testimony by connecting defendant with the commission of the chargedcrimes (see People v Reome, 15NY3d 188, 191-192 [2010]; Peoplev Lee, 80 AD3d 877, 878 [2011], lv denied 16 NY3d 832, 833, 834 [2011]).Hart testified that defendant invited him to participate in a scheme to burn the building anddivide the insurance proceeds; under the plan, Hart signed a lease and obtained renter's insurancealthough he did not live in the building, and provided defendant with possessions to be placed inthe building to increase the value of the insurance claim. According to Hart, he, defendant, thedaughter and the son-in-law met in the daughter's apartment on the night of the fire; as part of theplan to make the fire appear accidental, the daughter was cooking. Hart testified that after thedaughter and son-in-law left the building, he helped defendant spread accelerants that, accordingto defendant, would not be detectable by investigators after the fire. To create the appearance ofan accident, the stove burners were left on, and defendant ignited the conflagration by setting fireto a roll of paper towels and tossing them toward the stove.
Nonaccomplice evidence connecting defendant to the crimes included the testimony of awitness who visited the building on the night of the fire and found defendant present with theson-in-law, a third man unknown to the witness and the daughter, who was cooking. Aninsurance representative testified that following the fire, defendant submitted an insurance claimthat included a claim for lost rent, although there was other evidence that the daughter andson-in-law did not pay rent and that leases defendant submitted in support of this claim were notgenerated until after the fire. Defendant was seen after the fire wearing a ring that Hart hadincluded in his renter's insurance claim, and defendant's handwriting appeared on a list of stampsand coins that Hart also submitted to his insurer; Hart later testified that these items belonged todefendant. Defendant's name appeared on the utility account for the apartment where theson-in-law purportedly resided, and there was evidence that the son-in-law did not live there (see People v Pagan, 97 AD3d 963,965 [2012]). Extensive additional corroborative evidence—including a fire investigator'stestimony that, although no traces of accelerant were found, unusual burn patterns in the buildingsuggested that the fire was intentionally set—has been examined by this Court inconnection with the appeals filed by the daughter and son-in-law (id.; People v Pagan, 87 AD3d 1181,1182 [2011]). Cumulatively, the nonaccomplice evidence amply provided the required "slimcorroborative linkage" to Hart's testimony (People v Breland, 83 NY2d 286, 294 [1994];accord People v Reome, 15 NY3d at 192). Thus, the evidence was legally sufficient topermit the jury to conclude that all of the [*3]elements of thecrimes of which defendant was convicted were established beyond a reasonable doubt (see People v Berry, 78 AD3d1226, 1228 [2010], lv denied 16 NY3d 828 [2011]; People v Self, 75 AD3d 924,925-926 [2010], lv denied 15 NY3d 895 [2010]). Further, although a different verdictwould not have been unreasonable, considering the evidence in a neutral light and giving theappropriate deference to the jury's credibility assessments and resolution of conflicting evidence,we are satisfied that the verdict is not against the weight of the evidence (see People v Gilbo, 52 AD3d 952,954 [2008], lv denied 11 NY3d 788 [2008]).
We discern no error in County Court's Sandoval ruling. In response to the People'srequest to cross-examine defendant about seven prior convictions and a lengthy list of bad acts,the court permitted inquiry into only two convictions. As to the first of these, the court limitedpotential prejudice by permitting the People to establish that defendant had been found guilty of afederal felony without allowing any reference to the specific nature of the crime—that is,weapons sale. The People were further permitted to inquire about a 1987 bail-jumping convictionwithout mentioning the charges that defendant was facing when he absconded. While this offensewas remote in time, "[t]here are no per se rules that require preclusion of prior convictions due totheir age, nature or number" (People vJones, 70 AD3d 1253, 1254 [2010]; see People v Ward, 27 AD3d 776, 777 [2006], lv denied 7NY3d 764 [2006]). Both convictions reflected defendant's willingness to place his interestsabove those of society, and the court properly balanced their probative value against the risk ofunfair prejudice (see People vPhelan, 82 AD3d 1279, 1282 [2011], lv denied 17 NY3d 799 [2011]; People v Peele, 73 AD3d 1219,1220 [2010], lv denied 15 NY3d 893, 894 [2010]; People v Collins, 56 AD3d 809, 810 [2008], lv denied 11NY3d 923 [2009]).
Defendant's constitutional right to confront witnesses (see Crawford v Washington,541 US 36 [2004]; Bruton v United States, 391 US 123 [1968]) was not violated by theuse at trial of a statement in which the son-in-law told police that he "had knowledge" of and"was involved in" the fire. The statement was admitted solely as evidence against the son-in-law,the jury was repeatedly given instructions to that effect and the statement neither mentioneddefendant nor implicated him in any wrongdoing (see People v Pagan, 87 AD3d at1183-1185; compare People vHardy, 4 NY3d 192, 197-198 [2005]; People v Pinto, 56 AD3d 956, 958 [2008]). Further, County Courtdid not err in denying defendant's request for a circumstantial evidence instruction, as none of thecharges against him were supported solely by such evidence (see People v Pagan, 97AD3d at 968; People v Varmette, 70AD3d 1167, 1171 [2010], lv denied 14 NY3d 845 [2010]).
Next, defendant contends that testimony given by his former wife violated the maritalprivilege pursuant to CPLR 4502 (b).[FN2]Notably, defendant made no objection on this ground before or during the former wife'stestimony, but even if his belated general objection sufficiently preserved the claim (seeCPL 470.05 [2]), the verdict need not be disturbed for this reason. The former wife testified atlength. Much of her testimony was in regard to matters that did not involve communications withdefendant, but rather arose from her personal knowledge of his rental properties and herinvolvement in defendant's business activities, such as preparing tax documents for theaccountant each year and—after the fire—using a computer program to generateleases for the daughter and son-in-law. Near the end of her direct testimony, she was asked whyshe generated the leases, and responded that defendant asked her to do so to prove lost [*4]rent for his insurance claim. Defense counsel thereafter elicitedfurther testimony about this request during cross-examination. As a communication betweenspouses, the former wife's testimony about defendant's request was "presumed to have beenconducted under the mantle of confidentiality" (People v Starr, 213 AD2d 758, 759[1995], lv denied 85 NY2d 980 [1995] [internal quotation marks and citation omitted];see People v Fediuk, 66 NY2d 881, 883 [1985]). Defendant did not waive the privilegeby submitting the leases to his insurer, as this revealed only that the leases existed, but not thesubstance of the challenged communication (see Matter of Vanderbilt[Rosner—Hickey], 57 NY2d 66, 74 [1982]; compare People v Weeks, 15 AD3d 845, 846 [2005], lvdenied 4 NY3d 892 [2005]). Nonetheless, given the limited nature of the former wife'stestimony regarding the request and the other extensive evidence of defendant's guilt, we find nosignificant probability that the jury would have acquitted defendant if the confidentialcommunication had not been admitted; thus, the error was harmless (see People v Marinaccio, 15 AD3d932, 933 [2005]; People v Knights, 131 AD2d 924, 926 [1987], lv denied 70NY2d 713 [1987]).
We likewise reject defendant's contention that County Court improperly refused his requestto call as a witness a police detective who, according to defendant, would have testified that thescope of immunity offered to Hart was greater than Hart stated during his testimony. Defendantasserts that this testimony would have revealed that Hart had been caught filing a fraudulentinsurance claim and thus established his motivation to fabricate a story implicating defendant. As"extrinsic proof tending to establish a reason to fabricate is never collateral and may not beexcluded on that ground" (People v Hudy, 73 NY2d 40, 56 [1988]), the court erred indenying the request. Nonetheless, defendant did not establish that he was prejudiced by thepreclusion, as the testimony would have been cumulative of other evidence—includingHart's own testimony—regarding his agreement to testify in exchange for a broad grant ofimmunity (see People v Islam, 22AD3d 599, 599-600 [2005], lv denied 6 NY3d 754 [2005]). Accordingly, this errorwas harmless.
For the first time on appeal, defendant contends that his right to a speedy trial under theInterstate Agreement on Detainers Act was violated (see 18 USC Appendix 2, § 2,art IV [c], [e]; CPL 580.20, art IV [c], [e]). Even if this claim had been preserved (see Peoplev Primmer, 46 NY2d 1048, 1049 [1979]), it cannot be addressed on direct appeal as itinvolves matters outside of the record (see People v Bianca, 91 AD3d 1127, 1130 [2012], lvdenied 19 NY3d 862 [2012]; Peoplev Bethune, 65 AD3d 749, 751 [2009]). For the same reason, defendant's claim that hereceived ineffective assistance of counsel would be more appropriately reviewed through amotion pursuant to CPL article 440 (seePeople v McCray, 96 AD3d 1160, 1161 [2012], lv denied 19 NY3d 1104[2012]; People v Varmette, 70 AD3d at 1172). To the extent that the claimed ineffectiveassistance is based upon the record, we note that defendant's counsel made appropriate motionsbefore, during and after the trial, raised relevant objections, conducted vigorous and effectivecross-examination and made cogent arguments to the jury; thus, defendant received meaningfulrepresentation (see People v Bahr,96 AD3d 1165, 1166 [2012], lv denied 19 NY3d 1024 [2012]).
Finally, we are unpersuaded by defendant's claim that his sentence is harsh and excessive.Given his criminal history and complete lack of remorse for, among other things, involving hisdaughter and son-in-law in criminal activity for his own financial gain, we find no abuse ofdiscretion or extraordinary circumstances warranting modification (see People v Mangan,258 AD2d 819, 822 [1999], lv denied 93 NY2d 927 [1999]). Defendant's remainingcontentions, including those raised in his pro se submissions, have been examined and found to[*5]be without merit.
Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The daughter and son-in-lawmarried in 2006. They were both convicted of crimes arising from the fire; upon their appeals,the judgments of conviction were affirmed (People v Pagan, 97 AD3d 963 [2012]; People v Pagan, 87 AD3d 1181[2011], lv denied 18 NY3d 885 [2012]).
Footnote 2: Defendant and the former wifedivorced after the fire.