| People v Richardson |
| 2008 NY Slip Op 07178 [55 AD3d 934] |
| October 2, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Richardson,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Alison M. Thorne of counsel), forrespondent.
Peters, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered February 15,2007 in Albany County, upon a verdict convicting defendant of the crimes of arson in the third degreeand insurance fraud in the third degree.
Less than two hours after defendant left his home in the City of Albany, a fire was discovered onthe second floor. While extinguished relatively quickly, the rear of the building, particularly the kitchen,suffered severe damage. Defendant thereafter notified his insurance company of the loss and, followingan investigation of the fire, he was subsequently charged with the crimes of arson in the third degree andinsurance fraud in the third degree. Following a jury trial, defendant was convicted as charged andsentenced to an aggregate term of 3
Defendant's primary contention is that his convictions, which rested solely upon circumstantialevidence, are against the weight of the evidence.[FN1] A determination as to whether [*2]the verdict is supported by theweight of the evidence requires us to independently review the evidence and, if a different verdict wouldnot have been unreasonable, to " 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291NY 55, 62 [1943]). Upon such review, we do not distinguish between direct and circumstantialevidence (see People v Cushner, 46AD3d 1121, 1123 [2007], lv denied 10 NY3d 809 [2008]).
It is undisputed that defendant had sole access to the building. Further, arson investigators RichardColeman and Thomas Mitchell concluded that the fire had originated in the northwest corner ofdefendant's kitchen, where a space heater, refrigerator, stove, microwave, water cooler and outsidelight were all plugged into and powered by a single electrical outlet through the use of a power strip. Indiscerning the source of the blaze, both Coleman and Mitchell testified that they were able to exclude allaccidental causes. A subsequent lab report confirmed the presence of a medium petroleum distillate ona portion of the baseboard where the fire originated.
Nonetheless, viewing the evidence in a neutral light, we conclude that defendant's convictions arenot supported by the weight of the evidence (see People v Bleakley, 69 NY2d at 495).Notably, both Coleman, who commenced his training as a fire investigator just five months prior to thefire, and Mitchell, the investigator hired by the insurance company, conceded that they were unable topinpoint the actual cause of the fire. Moreover, and critically, while they had ruled out the possibility ofmechanical sources, neither chose to have the majority of appliances inspected, which were groupedtogether in the northwest corner of the small, compact kitchen. Further, the investigators stated that,upon entering the building, they noticed three tripped circuit breakers—indicating a potentialcircuit overload—but neglected to determine the source of the breakers' failure or with whichappliances they were associated. Rather, Coleman, in excluding the possibility of an electrical fire, reliedon the expert report of Stuart Morrison, an engineer specializing in failure analysis. While Morrisonexamined the space heater, electrical outlet, power strip and the remains of several electrical wires, thefact remains that his report was completed without the benefit of visiting the scene, investigating thetripped circuit breakers or examining the remaining electrical appliances—all of which were inclose proximity to the fire's origin. Under these circumstances, we cannot conclude that the experttestimony reasonably excluded the possibility of an electrical fire (see People v Trippoda, 40AD2d 388, 393 [1973]).
Of equal importance, defendant testified that he was in the process of repainting the kitchen at thetime of the fire and that he stored a plastic bottle of charcoal lighter fluid, which he used for his charcoalgrill, in a box near the space heater.[FN2] The import of this information [*3]became apparent, as both Colemanand Margaret LaFond, a forensic scientist, testified that the portions of the baseboard where the fireoriginated tested positive for a medium petroleum distillate—examples of which include paintthinner and some brands of charcoal lighter fluid. However, neither Coleman nor LaFond identified thespecific distillate found on the baseboard and, critically, failed to provide unequivocal testimonyexcluding paint thinner, turpentines or charcoal lighter fluid as the source of the distillate. Furthermore,and not insignificantly, although Mitchell discovered a burn pattern on the kitchen floor, subsequenttesting of those portions of the floor came back negative for the presence of ignitable fluids.
Moreover, the record does not support the inference that defendant had a motive to commit thearson. Although motive is not an element of the crime, it nonetheless cannot be ignored (see Peoplev Cushner, 46 AD3d at 1123; People v Hamilton, 129 AD2d 859, 862 [1987]). Indeed,where, as here, a case is based entirely upon circumstantial evidence, " 'the motive often becomes notonly material but controlling, and in such cases the facts from which it may be inferred must be proved.It cannot be imagined any more than any other circumstance in the case' " (People v Lewis,275 NY 33, 40 [1937], quoting People v Fitzgerald, 156 NY 253, 258 [1898]; seePeople v Schatz, 37 AD2d 584, 585 [1971]).
While the evidence established that defendant owed approximately $3,000 in taxes and was oftenlate paying his bills,[FN3] his financial situation was far from dire (see Chenango Mutual Ins. Co. v Charles, 235 AD2d667, 669 [1997]; compare People v Grassi, 92 NY2d 695, 698 [1999]; People vCushner, 46 AD3d at 1123). Defendant owned his home free and clear of any mortgage or otherfinancial encumbrance and, in fact, was in the process of renovating it when the fire occurred (seePeople v Lewis, 275 NY at 41-42). Further, although the dissent correctly states that defendantpurchased an increase in insurance about a month before the fire, it fails to acknowledge that hiscoverage was nonetheless consistent with that of previous policies he had held[FN4] and, more significantly, was grossly inadequate to the loss sustained (compare People vVenkatesan, 295 AD2d 635, 637 [2002], lv denied 99 NY2d 565 [2002], certdenied 549 US 854 [2006]; People v Labar, 278 AD2d 522, 523[2000]; People v Karadimas, 134 [*4]AD2d 952, 952[1987], lv denied 70 NY2d 933 [1987]). Specifically, the value of defendant's personalproperty lost by the fire exceeded the policy limits by approximately $30,000 and the cost of repairs tothe building exceeded his limits by nearly $8,000 according to the insurance company's adjuster and$30,000 according to an adjuster hired by defendant. More tellingly, defendant had not removed any ofhis personal items from his home prior to the fire (compare People v Beyor, 272 AD2d 929,930 [2000], lv denied 95 NY2d 832 [2000]; People v Flick, 147 AD2d 957, 957[1989], lv denied 73 NY2d 921 [1989]) and, upon arriving at the scene, he importuned thefirefighters to retrieve from his home the flag that had draped his father's casket.
Given the paucity of the proof on the issue of motive, along with the questionable basis for the fireinvestigators' conclusion that all accidental causes of the fire had been excluded, we cannot concludethat the evidence was " 'of such weight and credibility as to convince us that the jury was justified infinding the defendant guilty beyond a reasonable doubt' " (People v Cahill, 2 NY3d 14, 58 [2003], quoting People vCrum, 272 NY 348, 350 [1936]; seePeople v Clark, 52 AD3d 860, 861-862 [2008]).
Rose and Malone Jr., JJ., concur.
Carpinello, J. (dissenting). Because we cannot say that the jury in this case "failed to give theevidence the weight it should be accorded," we dissent from the majority's conclusion that the verdict isagainst the weight of the evidence (People v Bleakley, 69 NY2d 490, 495 [1987]). Inconducting a weight of the evidence analysis, this Court cannot substitute itself for the jury and mustaccord great deference to every reasonable inference it could draw from the evidence, particularlygiven the jury's opportunity to view the witnesses, hear their testimony and observe their demeanor(see id.). In short, "the verdict 'must remain undisturbed unless the record reveals that it isclearly unsupported' " (People v Labar, 278 AD2d 522, 523 [2000], quoting People vMaxwell, 260 AD2d 653, 654 [1999], lv denied 93 NY2d 1004 [1999]).
In this case, we find it noteworthy that defendant chose to take the stand and be exposed tocross-examination by the People. While we certainly have the record of his testimony, we have no hintof his demeanor. There was no sign of forced entry at the scene of the fire. In addition, as conceded bythe majority, the jury heard from two certified fire investigators, Richard Coleman from the City ofAlbany Fire Department and Thomas Mitchell, who had been retained by defendant's insurer. Bothinvestigators testified that, based upon their physical inspection of the subject premises, allaccidental causes for the fire had been eliminated.
In this regard, we take specific exception to the majority's conclusion that these experts did not"reasonably" exclude the possibility of an electrical fire. The precise origin of the fire, identified by adistinctive "V" burn pattern on the wall, was in a corner of the kitchen near the stove. Although thekitchen appliances referred to by the majority were indeed clustered in the corner of the kitchen wherethe fire originated, none was at the base of the distinctive "V" burn pattern depicted in the photographsadmitted into evidence. Mitchell especially noted that the kitchen appliances such as the stove andrefrigerator had been inspected by him, showed no sign of malfunction and had been eliminated aspotential sources of the fire. With respect to the tripped circuit breakers, he observed that they couldhave been tripped simply by the heat of the fire. Critically, the sample of wood taken from thebaseboard by Coleman at the origin of the fire subsequently tested positive for "medium petroleumdistillate, examples of which are paint [*5]thinners, dry cleaningsolvents, and some brands of charcoal starter fluid." In addition, Mitchell noted an unusual burn patternon the floor of the kitchen "consistent with something liquid burning across the surface of the floor."Finally, an engineering examination of the electric heater, the existence of which was specificallymentioned by defendant, first in his 911 call and again upon being interviewed by Coleman at the sceneof the fire, indicated that it was not the source of the fire.
Further proof at trial established that defendant was delinquent in his real property taxes, that gasservice to the residence had been disconnected after a history of late payments and threatened shutoffsand that, shortly before the fire, his fire insurance coverage had been increased. Specifically, hisinsurance had been cancelled for nonpayment effective July 30, 2004. Subsequently, he obtained a newpolicy with $50,000 worth of structure coverage and no contents coverage. On October 15, 2004, amonth prior to the fire, the structure coverage was increased to $65,000 and $31,000 in contentscoverage was obtained. In our view, defendant's financial motive, his opportunity to set the fire, experttestimony that petroleum distillate was found at the origin of the fire and evidence that no one else hadaccess to the premises compel the conclusion that the jury's verdict was adequately supported by theweight of the evidence (see People vCushner, 46 AD3d 1121, 1123-1124 [2007], lv denied 10 NY3d 809 [2008];People v Labar, supra). Accordingly, the judgment of conviction should be affirmed.
Cardona, P.J., concurs. Ordered that the judgment is reversed, on the facts, and indictmentdismissed.
Footnote 1: While defendant also argues that theevidence was legally insufficient to support his convictions, his general motion to dismiss upon the closeof the People's case and again at the close of all proof was insufficient to properly preserve this claim(see People v Gray, 86 NY2d 10, 19 [1995]; People v Salaam, 46 AD3d 1130, 1131 [2007], lv denied 10NY3d 816 [2008]).
Footnote 2: Indeed, Coleman testified that, atthe time of the fire, there were cans of paint in the kitchen, most if not all of which were ultimatelyspilled during the course of extinguishing the fire.
Footnote 3: The dissent implies that defendant'sgas service had been disconnected due to nonpayment, yet the record confirms that service wasdisconnected by defendant due to rising gas prices, as well as the fact that he was spending themajority of his time caring for his ailing mother at her home. Additionally, although defendant was twicethreatened with discontinuation of electric service due to nonpayment, he eventually made thesepayments and service was never disconnected.
Footnote 4: In fact, the proof established thatdefendant had maintained at least $60,000 of coverage on the building and $40,000 on the contentssince 2002. Although he obtained a new policy with $50,000 in structure coverage and no contentscoverage after his policy had been cancelled in July 2004, an agent of defendant's insurance companyspecifically recalled that this was because defendant did not have enough money with him at the time toprovide the initial deposit necessary to purchase the coverage that he had previously maintained.