| People v McGowan |
| 2017 NY Slip Op 02695 [149 AD3d 1161] |
| April 6, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JeremyMcGowan, Appellant. |
Smith Hernandez, LLC, Albany (Trey Smith of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), renderedNovember 19, 2015, upon a verdict convicting defendant of the crime of arson in the fourthdegree.
Defendant was charged by indictment with arson in the fourth degree, reckless endangermentin the first degree and criminal mischief in the second degree stemming from allegations that, at atime when he was separated and living apart from his estranged wife, he entered the maritalresidence in the early morning hours, roused her from her sleep and made sexual advances. Whenhis advances were rejected, he was alleged to have angrily set his wife's lingerie on fire in thebathtub, causing damage to the marital home and risk of injury or death to his wife and otherssleeping in the home. Prior to trial, the charge of criminal mischief in the second degree wasdismissed. Following a jury trial, defendant was convicted of arson in the fourth degree, butacquitted of reckless endangerment in the first degree and the lesser included offense of recklessendangerment in the second degree. Defendant was subsequently sentenced to a one-year jailterm, and he now appeals.
Defendant's contention that the evidence was legally insufficient to establish that heintentionally—as opposed to negligently—started the fire is unpreserved for ourreview inasmuch as he failed to specifically raise this issue in his motion for a trial order ofdismissal at the close of the People's proof (see People v Montford, 145 AD3d 1344, 1345 [2016]; see generally People v Hawkins, 11NY3d 484, 492 [2008]). In any event, if we were to consider the argument, we would viewthe evidence in the light most favorable to the People (see People v Denson, 26 NY3d 179, 188 [2015]) and conclude thatthere was a valid line of reasoning and permissible [*2]inferencesfrom which the trier of fact could have found that, after the wife rejected defendant's sexualadvances, he angrily grabbed her lingerie from her dresser drawer, placed it in the bathtub andthen set fire to a piece of her underwear with a lighter, saying, "if I can't have you, no one can."The evidence of the ensuing events permitted the jury to reasonably and logically find thatdefendant then placed the burning piece of underwear on the pile of lingerie in the bathtub,making his intent to start the fire that caused the damage clearly inferable (see Penal Law§ 150.05; see generally People v Bracey, 41 NY2d 296, 301 [1977]).Contrary to defendant's contention, the People did not rely exclusively on circumstantialevidence and, had they done so, "even in circumstantial evidence cases, the standard for appellatereview of legal sufficiency issues is whether any valid line of reasoning and permissibleinferences could lead a rational person to the conclusion reached by the fact finder on the basis ofthe evidence at trial, viewed in the light most favorable to the People" (People v Reichel, 110 AD3d 1356,1363 [2013] [internal quotation marks, brackets and citations omitted], lv denied 22NY3d 1090 [2014]).
We also reject defendant's contention that his counsel was ineffective by failing to object tothe testimony of the People's expert witness that the fire was deliberately set. A single error risesto the level of ineffective assistance only in the rare instance when the error " 'involve[s]an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failedto assert it, and it [is] evident that the decision to forgo the contention could not have beengrounded in a legitimate trial strategy' " (People v Keschner, 25 NY3d 704, 723 [2015], quoting People v McGee, 20 NY3d 513,518 [2013]; accord People vFlowers, 28 NY3d 536, 541 [2016]). Defendant argues that if his trial counsel hadquestioned the People's expert regarding the "NFPA 921, Guide for Fire and ExplosionInvestigations," counsel could have established that the expert failed to consider the alternatetheory that the lit piece of underwear had ceased burning prior to being placed in the pile oflingerie in the bathtub and that it must have smoldered and rekindled later, thus establishing thatdefendant did not deliberately set the fire in the bathtub. Essentially, defendant argues on appealthat, while his actions caused the fire, he was merely negligent and had no conscious objective orpurpose to intentionally start the fire.
Our review of the record, however, reveals that defense counsel's theory at trial was that theunderwear defendant lit in the bedroom had "extinguished" prior to the point that he placed it inthe bathtub, but the wife then rekindled the flame after he left the house. In view of this plausibletheory that the wife, who had recently initiated a divorce action against defendant, may haveacted to obtain an advantage over him in the litigation of impending custody and equitabledistribution issues, we find that defendant's present argument amounts to no more than adisagreement with defense counsel's legitimate, albeit unsuccessful, trial strategy, which "isinsufficient to establish a lack of meaningful representation" (People v Hawkins, 130 AD3d 1298, 1305 [2015] [internalquotation marks and citation omitted], lv denied 26 NY3d 968 [2015]; see People v Gray, 27 NY3d 78,84 [2016]; People v Beckingham,116 AD3d 1298, 1300 [2014]). Further, in rejecting defendant's hindsight disagreement, wenote that his counsel obtained a dismissal of the criminal mischief charge and an acquittal on thetwo reckless endangerment charges that were submitted to the jury.
Finally, we are unpersuaded by defendant's contention that the sentence imposed was harshand excessive.[FN*] Areview of the record establishes that, while County Court had the authority to sentence defendantto an indeterminate prison sentence with a maximum of four years (see Penal Law§ 70.00 [2] [e]), the court exercised its discretion to impose an alternative definitesentence of one year in jail (see Penal Law § 70.00 [4]). In view of this,coupled with [*3]defendant's prior criminal history and thecircumstances surrounding this crime, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of his sentence in the interest of justice (see People v Abare, 86 AD3d 803,806 [2011], lv denied 19 NY3d 861 [2012]; People v Mangan, 258 AD2d 819,822 [1999], lv denied 93 NY2d 927 [1999]). Defendant's remaining contentions havebeen considered and determined to be lacking in merit.
Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed,and matter remitted to the County Court of Albany County for further proceedings pursuant toCPL 460.50 (5).
Footnote *:This Court granted defendant'smotion to stay execution of the judgment of conviction pending appeal and set bail at $75,000(see CPL 460.50 [1]).