| People v Permaul |
| 2019 NY Slip Op 05719 [174 AD3d 1127] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Zabeeda Permaul, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered May 27, 2016, upon a verdict convicting defendant of the crimes of arson in the firstdegree and insurance fraud in the second degree (two counts).
Defendant and her husband purchased a building in the City of Schenectady, SchenectadyCounty with restaurant space on the first floor and two apartments on the second floor. By 2015,defendant was estranged from her husband and managing the restaurant, living in one of theapartments and renting out the other. In the late morning of February 22, 2015, a fire started onthe stairs leading up from the basement. Defendant had just left the building, but her tenant called911 after smelling and seeing smoke. Due to the heavy smoke in the stairwell, the tenant did notescape the building and waited for assistance. Firefighters forced their way into the lockedbuilding, guided the tenant outside and extinguished the blaze. Defendant then made claimsagainst her business owner and renters insurance policies, issued by separate carriers, in whichshe misrepresented that there were no liens against the property. The subsequent investigationrevealed that defendant was in financial distress at the time of the fire and that kerosene, diesel ora similar accelerant was present on the basement steps where the fire had started.
Those and other facts led investigators to believe that defendant had set the fire herself inorder to pursue fraudulent insurance claims, and she was charged in an indictment with variousoffenses. Following a jury trial, defendant was convicted of arson in the first degree and twocounts of insurance fraud in the second degree. County Court imposed a sentence of 25 years tolife in prison upon the arson conviction and a lesser concurrent sentence on each insurance fraudconviction. Defendant appeals.
We affirm. Defendant argues that the verdict was against the weight of the evidence,primarily focusing upon the first-degree arson conviction. Inasmuch as "an acquittal would nothave been unreasonable," we are obliged to "weigh conflicting testimony, review any rationalinferences that may be drawn from the evidence and evaluate the strength of such conclusions" todetermine whether "the jury was justified in finding . . . defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Sanchez, 32 NY3d 1021, 1023 [2018]). In doing so,we "review the evidence in a neutral light, without distinguishing between direct andcircumstantial evidence, and give deference to the factfinder's ability to observe the witnesses"(People v Cushner, 46 AD3d1121, 1123 [2007] [citation omitted], lv denied 10 NY3d 809 [2008]; see People v Romero, 7 NY3d633, 643-644 [2006]; People vPierre, 162 AD3d 1325, 1327 [2018], lv denied 32 NY3d 1007 [2018]).
The proof adduced at trial established that the fire was not natural or accidental in origin andcaused damage to the building, as well as that defendant knew or could reasonably suspect thatthe tenant was present, leaving the questions of whether defendant intentionally set the fire anddid so for financial gain (see Penal Law § 150.20 [1]). In that regard,defendant was in dire financial straits by the time of the fire, with liens having been placedagainst the building for unpaid loans and taxes running into the tens of thousands of dollars. Shehad stopped repaying numerous loans, but continued to pay her insurance premiums and madesuch a payment for her business owners policy a few days before the fire. About an hour beforethe fire broke out, defendant was alone in the restaurant and deactivated the building's securitycameras. The tenant testified as to what followed, stating that she overheard defendant having atelephone conversation "about numbers" and soon smelled something similar to gasoline. Thetenant then detected smoke in her apartment, which an investigator testified would have occurredtwo or three minutes after the fire had started, given the accelerant used and the layout of thebuilding. There was no response from defendant's apartment when the tenant tried to raise thealarm, the reasons for which became clear when the tenant looked out a window and sawdefendant and her son leaving the scene in a car. The tenant also spoke to defendant later thatday, and defendant stated that she was carrying her passport and her valuables when she left thebuilding that morning. Defendant gave testimony that cast her son as the villain, but her accountwas assailed upon cross-examination as conflicting with both her prior statements and heracknowledgement that she had the keys to the building and refused to admit the son earlier thatday. The jury credited the proof of defendant's guilt despite her testimony and the lack of physicalevidence tying her to the fire and, deferring to that assessment, we find the conviction for arsonin the first degree to be supported by the weight of the evidence (see People v Vega, 170 AD3d1266, 1271 [2019]; People vHoward, 134 AD3d 1153, 1157 [2015], lv denied 27 NY3d 965 [2016];People v Cushner, 46 AD3d at 1123-1124).[FN*]
Defendant did not object to the testimony of a fire investigator who opined that the fire didnot have a natural or accidental origin, leaving unpreserved her contention that the testimonyimproperly encroached upon the province of the jury (see CPL 470.05 [2]; People v Ramsaran, 154 AD3d1051, 1055 [2017], lv denied 30 NY3d 1063 [2017]). In any event, County Courtappropriately considered "whether 'the potential value of the evidence [was] outweighed by thepossibility of undue prejudice to the defendant or interference with the province of thejury,' " and we perceive no reason to take corrective action on the issue in the interest ofjustice (People v Rivers, 18 NY3d222, 228 [2011], quoting People v Bennett, 79 NY2d 464, 473 [1992]; see People v Howard, 92 AD3d1219, 1220 [2012], lv denied 19 NY3d 864 [2012]).
Finally, defendant received the effective assistance of counsel. Defense counsel did notobject to the fire investigator's opinion testimony but, as noted above, an objection would nothave succeeded (see People vHackett, 167 AD3d 1090, 1095 [2018]; People v Garcia-Toro, 155 AD3d 1086, 1089-1090 [2017], lvdenied 30 NY3d 1115 [2018]). Moreover, although defense counsel muddled things in hisopening statement by saying that he would "prove" that defendant was innocent, he went on tomake clear that defendant was "innocent until proven guilty," and the proper burden of proof wasemphasized in County Court's instructions to the jury. The isolated statement was therefore not"so egregious that [it] would amount to ineffective assistance of counsel absent any othersignificant errors," of which we perceive none (People v Adams, 135 AD3d 1154, 1157-1158 [2016], lvdenied 27 NY3d 990 [2016]). The record instead reflects that defense counsel engaged inappropriate pretrial and posttrial motion practice and deployed a cogent, if unsuccessful, strategyat trial. Thus, we are satisfied from a review of the record that defendant was affordedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998];People v Adams, 135 AD3d at 1157-1158).
Egan Jr., J.P., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent that defendant alsoargues that she did not commit a "fraudulent insurance act" in an effort to "wrongfully take,obtain or withhold property with a value in excess of" $50,000, we do not agree (Penal Law§ 176.25; see Penal Law § 176.05). Defendant misrepresentedto both of her insurers that there were no liens on the property, and the jury's finding that sheintentionally did so in order to wrongfully obtain proceeds that should have gone to thelienholders was not against the weight of the evidence (see People v Stevens, 65 AD3d 759, 761-762 [2009], lvdenied 13 NY3d 839 [2009]; People v Dybdahl, 144 AD2d 949, 950 [1988]).