| People v Lind |
| 2015 NY Slip Op 08004 [133 AD3d 914] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vArmando Lind, Appellant. |
Jack H. Weiner, Chatham, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July10, 2013 in Albany County, upon a verdict convicting defendant of the crimes ofattempted arson in the second degree and endangering the welfare of a child (twocounts).
After an altercation with his adult daughter, defendant doused a bedroom in his homewith gasoline and threatened to burn the house down. Several members of defendant'sfamily, including defendant's two young grandchildren, were in the residence at the time.Defendant was charged with attempted arson in the second degree and two counts ofendangering the welfare of a child. Following a jury trial, he was convicted as chargedand sentenced to a prison term of seven years followed by five years of postreleasesupervision on the attempted arson conviction, and concurrent terms of one year each onthe convictions for endangering the welfare of a child. Defendant appeals.
Defendant contends that a recording of a 911 call made by his adult son should nothave been admitted into evidence and, further, that in the absence of the recording, hisconvictions were not supported by legally sufficient evidence and were against theweight of the evidence. We disagree. A 911 dispatcher testified that he received a call onthe morning of the incident from a "very excited" male caller who reported the locationand nature of the emergency but did not provide his name. The dispatcher confirmed thathe had listened to the recording of this conversation before the trial and that it was fair,accurate and unaltered. The People sought to admit the recording based upon thistestimony; defendant objected, and Supreme Court reserved judgment. A police officerthen testified that he responded to defendant's address after the [*2]dispatching center informed him that a 911 caller hadreported that gasoline had been poured inside a residence at that address and a subjecthad threatened to burn the house down. The court allowed this testimony for the limitedpurpose of explaining the actions taken by the officer and not for its truth, and so advisedthe jury. The officer then testified that he listened to the recording of the 911 call afterthe incident and recognized the caller's voice as that of defendant's son, with whom hehad had numerous contacts. Following this testimony, the court admitted the recordinginto evidence, over defendant's renewed objection, and permitted the People to play it forthe jury. On the recording, agitated voices, including those of children, can be heard inthe background as the caller reports that his father threatened to burn the house down andpoured gasoline in a bedroom.
Contrary to defendant's various contentions upon appeal, we find no error inSupreme Court's determination on this issue. The testimony of the officer and dispatcher,taken together, provided the requisite foundation, consisting of "proof of the accuracy orauthenticity of the tape by clear and convincing evidence establishing that the offeredevidence is genuine and that there has been no tampering with it" (People v Ely,68 NY2d 520, 527 [1986] [internal quotation marks and citation omitted]; accord People v Bell, 5 AD3d858, 861 [2004]). Moreover, when defendant's son testified after the tape wasadmitted, he acknowledged that he had called 911 and that the voice on the recordingwas his. The recording was admissible as an excited utterance, as the evidenceestablished that it was "made under the stress of excitement caused by an external event,and [was] not the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d302, 306 [2003]; accordPeople v Haskins, 121 AD3d 1181, 1183 [2014], lv denied 24 NY3d1120 [2015]; see People v Rodriguez, 306 AD2d 686, 688 [2003], lvdenied 100 NY2d 624 [2003]). Defendant's confrontation rights were not violated, asdefendant had the opportunity to cross-examine the son when he testified (seeCrawford v Washington, 541 US 36, 59 [2004]). Further, the call—made forthe purpose of obtaining an emergency response—was nontestimonial (see People v Warren, 124AD3d 699, 701 [2015]; People v Anderson, 114 AD3d 1083, 1085 [2014], lvdenied 22 NY3d 1196 [2014]).
As for the legal sufficiency and weight of the evidence, a neighbor testified that sheheard "screaming and yelling" from defendant's home and saw defendant leave thehouse, go into the backyard where a shed was located, and reenter the house carrying twored gasoline cans. Thereafter, according to the neighbor, "[t]here was a lot of jumpingand noise and even the garage door was, like, moving." The neighbor then sawdefendant's adult daughter emerge from the house, gagging, coughing and carrying ababy. The police officer who responded to the 911 call testified that, as he approacheddefendant's residence, he was able to smell gasoline from 100 to 150 feet away.Defendant was in front of the house, smoking a cigarette, and attempted to enter theresidence when he saw the officer, but stopped when commanded to do so. Defendant'swife, daughter, son and two grandchildren were indoors, where the odor of gasoline wasso strong that the officer moved the family outside. A fire department lieutenant testifiedthat he could smell gasoline outside defendant's residence and that the smell wasstrongest inside an upstairs room that appeared to be a child's bedroom, where the wallswere spattered and pools of gasoline were visible on the carpet. Readings from thelieutenant's air quality meter revealed 200 parts per million of gasoline in the air of thisroom, a level known to cause coughing and eye and throat irritation and capable ofcausing ignition from sparks or other sources in nearby rooms. The lieutenant remediatedthe hazard by ventilating the house with fans, a process that took approximately twohours.
Defendant's son testified for the People as a hostile witness pursuant to a materialwitness warrant, stating that when the son awoke on the morning of the incident, heheard defendant arguing with defendant's daughter and telling her to get out of the house.He [*3]acknowledged that he placed the 911 call, butoffered testimony that otherwise conflicted with the statements made in the course of thatcall. For example, the son testified that he did not see defendant pour the gasoline anddid not know that any gasoline had been poured; however, he had told the 911 dispatcherthat "[defendant] poured it in one room and I left the room. I took the kid and got out ofthe room." In his testimony, the son made other statements that essentially attempted tominimize his concern and rebut the inferences that might be drawn from the recordingrelative to the severity of the situation and his perceptions of the danger.
The trial testimony and evidence, taken as a whole and viewed in the light mostfavorable to the People, provided a valid line of reasoning from which the jury couldhave found that defendant intended to commit the crime of arson in the seconddegree—as evidenced by his threat to burn the house down—that heengaged in conduct tending to effect the commission of the crime by pouring gasolineindoors, and that he did so while two minor children were in the house. Accordingly, theevidence was legally sufficient to support his convictions (see Penal Law§§ 150.15, 110.00, 260.10; People v Adams, 222 AD2d 1124,1124 [1995], lv denied 87 NY2d 1016 [1996]; People v Clemmons, 173AD2d 723, 723 [1991], lv denied 78 NY2d 964 [1991]). The contradictionsbetween the son's trial testimony and his statements on the 911 recording presentedcredibility issues for the jury to resolve and, according the appropriate deference to theseassessments, we find that the verdict is in accord with the weight of the evidence (see People v Abare, 86 AD3d803, 804 [2011], lv denied 19 NY3d 861 [2012]; People v Nesbitt, 69 AD3d1109, 1111-1112 [2010], lv denied 14 NY3d 843 [2010]).[FN*]
Finally, we reject defendant's contention that his sentence is unduly harsh. The factthat the sentence is longer than one offered by the People during pretrial pleanegotiations, without more, does not demonstrate that defendant was punished forasserting his right to trial, and the record contains no evidence of retribution orvindictiveness (see People v Fletcher, 309 AD2d 1085, 1086 [2003], lvdenied 1 NY3d 571 [2003]). After considering defendant's family obligations andthe many letters submitted by his friends and relatives attesting to his good character,Supreme Court imposed a considerably shorter sentence than the potential 15-yearmaximum (see Penal Law §§ 70.02 [3] [b]; 110.05 [4];150.15). In view of the nature of defendant's offenses and his criminal history, we findno abuse of discretion or extraordinary circumstances warranting a modification in theinterest of justice (see People v Nesbitt, 69 AD3d at 1112-1113; People vKrug, 282 AD2d 874, 880 [2001], lv denied 98 NY2d 652 [2002]).
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant argues thatthe People failed to support one of his convictions for endangering the welfare of a childwith proof of the younger grandchild's date of birth. This contention was unpreserved,but we necessarily examine the sufficiency of the elements of each charged crime as partof our review of the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Thetestimony established that the grandchild was no more than two years old at the time ofthe incident (see Penal Law § 260.10 [1]).