| People v Brown |
| 2008 NY Slip Op 10349 [57 AD3d 1461] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kathleen Brown,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 12,2007. The judgment convicted defendant, upon a jury verdict, of arson in the second degree andassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of arson inthe second degree (Penal Law § 150.15) and assault in the second degree (§ 120.05 [6]),based upon evidence presented at trial that she started a fire in her apartment after receiving an evictionnotice. Defendant failed to preserve for our review her contention that County Court erred in orderingand admitting in evidence the videotaped conditional examination of a witness (see People vPonder, 266 AD2d 826, 827 [1999], lv denied 94 NY2d 924 [2000], 95 NY2d 856[2000]; see also People v Young, 298 AD2d 952 [2002], lv denied 99 NY2d 566[2002]; People v Dixon, 221 AD2d 952 [1995], lv denied 87 NY2d 972 [1996],cert denied 519 US 842 [1996]). We decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see Ponder, 266 AD2d at 827). Defendantdid not object to the opinion testimony of a fire investigator that the fire was intentionally started andthus failed to preserve for our review her contention that the investigator improperly invaded theprovince of the jury by so testifying (seePeople v Pierre, 37 AD3d 1172 [2007], lv denied 8 NY3d 989 [2007]; People vTutt, 305 AD2d 987 [2003], lv denied 100 NY2d 588 [2003]). Moreover, defendantwaived that contention by eliciting similar testimony from the fire investigator on cross-examination (see People v Grant, 54 AD3d 967[2008]; People v Bryan, 50 AD3d1049, 1050-1051 [2008], lv denied 11 NY3d 786 [2008]; People v Black, 38 AD3d 1283, 1285[2007], lv denied 8 NY3d 982 [2007]). In any event, we conclude that any error in theadmission of that testimony is harmless inasmuch as the remaining evidence of defendant's guilt isoverwhelming, and there is no significant probability that defendant otherwise would have beenacquitted (see People v Narrod, 23AD3d 1061 [2005], lv denied 6 NY3d 816 [2006]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]).
We reject the contention of defendant that the court abused its discretion in admitting evidence thatshe previously damaged another apartment after receiving an eviction notice from the landlord of [*2]that apartment. That evidence was admissible to establish intent and theabsence of mistake or accident, particularly in view of defendant's theory at trial that the fire was theresult of an accident and was not intentionally started (see People v Guiteau, 267 AD2d 1094[1999], lv denied 94 NY2d 920 [2000]; see generally People v Molineux, 168 NY264, 293-294 [1901]). Also contrary to defendant's contentions, the verdict is not against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentenceis not unduly harsh or severe. We have examined defendant's remaining contentions and conclude thatthey are lacking in merit. Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Green, JJ.