| People v Hernandez |
| 2007 NY Slip Op 10249 [46 AD3d 1388] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JimmyHernandez, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July18, 2005. The judgment convicted defendant, upon a jury verdict, of arson in the first degree,reckless endangerment in the first degree, and criminal mischief in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofarson in the first degree (Penal Law § 150.20 [1]), reckless endangerment in the firstdegree (§ 120.25), and criminal mischief in the second degree (§ 145.10).Defendant's first two trials ended in mistrials because of hung juries and, during his openingstatement at defendant's third trial, defense counsel stated that he was confident that the jurywould not convict defendant "much like the previous two juries." County Court thereupongranted the People's motion for a third mistrial. Defendant contends that his fourth trial wasbarred by double jeopardy because there was not the requisite " 'manifest necessity' " for the thirdmistrial (People v Michael, 48 NY2d 1, 9 [1979], quoting United States v Perez,22 US 579, 580 [1824]). We reject that contention (see CPL 280.10 [2]). Here, defensecounsel's comments to the jury amounted to "gross misconduct . . . resulting insubstantial and irreparable prejudice to the [P]eople's case" (id.), and thus defendant'sretrial was not barred by double jeopardy (see generally People v Mallette, 59 AD2d 199,202 [1977]). We further conclude that the court did not abuse its discretion by allowing thePeople to question a police officer on redirect examination with respect to defendant's suppressedstatement because defendant, while cross-examining the officer, "opened the door" to theintroduction of that statement (see generally People v Melendez, 55 NY2d 445, 451-452[1982]).
We reject defendant's contention that the evidence is legally insufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Inasmuch as theevidence presented at defendant's first two trials was essentially the same as that presented at thefourth trial, we likewise reject defendant's contention that the evidence presented at the first twotrials is legally insufficient to support the conviction and thus that the fourth retrial was barred bydouble jeopardy (cf. People v Tingue, 91 AD2d 166, 168 [1983]; see generally Peoplev Pawlowski, 116 AD2d 985, 986 [1986], lv denied 67 NY2d 948 [1986]).Defendant's further contention that the verdict is against the [*2]weight of the evidence also lacks merit (see generallyBleakley, 69 NY2d at 495). We perceive no reason to disturb the determination of the jury tocredit the testimony of the People's witnesses (see generally id.; People v Clark,284 AD2d 956 [2001], lv denied 97 NY2d 640 [2001]). We also reject the contention ofdefendant that the court erred in admitting in evidence a photograph of an individual covered insoot who was present in the house at the time that defendant committed the arson. Thephotograph was relevant to establish the requisite element of reckless endangerment byestablishing that the individual depicted in the photograph was present in the house whendefendant started the fire (see Penal Law § 120.25; see generally People vPobliner, 32 NY2d 356, 369-370 [1973], rearg denied 33 NY2d 657 [1973], certdenied 416 US 905 [1974]).
The sentence is not unduly harsh or severe. Defendant's remaining contentions are notpreserved for our review (see CPL 470.05 [2]), and we decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Present—Martoche, J.P., Smith, Centra, Peradotto and Green, JJ.