| People v Hodges |
| 2009 NY Slip Op 07693 [66 AD3d 1228] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian D.Hodges, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Kevin P. Donlon of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered July 18, 2007, upon a verdict convicting defendant of the crimes of arson in the seconddegree, criminal mischief in the second degree and reckless endangerment in the first degree(five counts).
In January 2006, defendant, then age 26, began a sexual relationship with a 16-year-old girl.In June 2006, as she later testified, she ended the relationship. The girl's parents then sent her tospend the summer with relatives in the Town of Horicon, Warren County. The relatives owned astore and resided in an apartment above. Defendant repeatedly asked the girl to return home,reacted angrily when she refused to do so, and argued with her father about having sent heraway.
Late in July 2006, defendant made an anonymous e-mail complaint to the Department ofAgriculture and Markets alleging that unsanitary practices at the store had made him sick. Hefollowed up the complaint with a telephone call to the Department in his own name. That night,he drove to the store and, by his own admission, started a fire under a deck at the rear of thebuilding. After he drove away, the fire consumed the building as well as two vehicles parkednearby; the occupants escaped.
Defendant initially claimed that he was at home in bed when the fire started. Confrontedwith cellular telephone records contradicting this claim, he offered several alternate [*2]explanations before acknowledging that he had started the fire. Hewas indicted on one count each of arson in the second degree, arson in the fourth degree, andcriminal mischief in the second degree, as well as five counts of reckless endangerment in thefirst degree. A jury convicted him of all of the charges except for arson in the fourth degree. Hewas sentenced to prison terms of 22 years for the arson conviction and 2
Initially, defendant contends that his arson and criminal mischief convictions are notsupported by legally sufficient evidence and are against the weight of the evidence, in that proofthat he intended to damage the store was lacking. To prove arson in the second degree, thePeople were required to show that defendant "intentionally damage[d] a building by starting afire" when there was another person in the building and defendant knew or should have knownof the person's presence (People vCushner, 46 AD3d 1121, 1122 [2007], lv denied 10 NY3d 809 [2008];see Penal Law § 150.15). As to criminal mischief in the second degree, the Peoplewere required to prove that "with intent to damage property of another person," and without theright to do so, defendant damaged another person's property worth more than $1,500 (Penal Law§ 145.10). Contrary to defendant's claim, the proof of his intent was legally sufficient tosupport both convictions. Intent may be inferred from the act itself, from a defendant's conductand statements, and from the surrounding circumstances (see People v Bracey, 41 NY2d296, 301 [1977]; People v Tunstall, 278 AD2d 585, 586-587 [2000], lv denied96 NY2d 788 [2001]; People v Labar, 278 AD2d 522, 523 [2000]).
On the night of the fire, defendant drove his mother's car to the store and parked it on a sidestreet where it was unlikely to be seen. He testified that he started the fire with a cigarette, built itup with leaves and cardboard, and fanned the flames. He allegedly left the fire to throw sticks attwo different windows in an unsuccessful attempt to attract the attention of the girl inside andthen returned to the fire, where the smoke had grown so heavy that he could not see his cigarette.Defendant testified that he stepped on the area where he thought the cigarette might be and thenleft the scene. Viewed in the light most favorable to the People, this evidence provided a " 'validline of reasoning and permissible inferences [that] could lead a rational person to the conclusion'" that defendant intended to damage the building (People v Venkatesan, 295 AD2d 635,636 [2002], lv denied 99 NY2d 565 [2002], cert denied 549 US 854 [2006],quoting People v Williams, 84 NY2d 925, 926 [1994]).
As a different conclusion would not have been unreasonable, "we must weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Krug, 282 AD2d 874, 878 [2001], lvdenied 98 NY2d 652 [2002] [internal quotation marks and citations omitted]). Defendanttestified that he did not intend to damage the building, since the girl he loved was inside. Heclaimed that he merely intended to attract the attention of the occupants and to point out that afire hazard existed under the deck. The People argue that defendant intended to damage thebuilding in order to compel the girl to return home. The jury's credibility assessments are to begiven "[g]reat deference" (People v Bleakley, 69 NY2d 490, 495 [1987]), and it was freeto accept some parts [*3]of defendant's testimony and rejectothers (see People v Alteri, 49AD3d 918, 920 [2008]). The girl testified that defendant had persistently pursued her,followed her, and attempted to persuade her to return home. Based on this evidence, as well asdefendant's complaint about the store to the Department on the same day as the fire, the falseaccounts he initially gave to police, his knowledge and experience as a volunteer firefighter, andhis admission that he started the fire and even fanned the flames in an area that he considered tobe a fire hazard and then left the scene without ascertaining that the fire was out or that thebuilding's occupants knew about it, we find that, "[w]hen viewed in a neutral light," the weightof the evidence supports both convictions (People v Labar, 278 AD2d at 523).
Defendant next contends that his convictions for arson in the second degree and criminalmischief in the second degree are repugnant to his convictions for reckless endangerment in thefirst degree in that the elements of intent for the first two crimes and recklessness for the othersare mutually exclusive. In determining whether verdicts are repugnant, a court "must review theessential elements of each count as charged to the jury to determine whether the defendant was'convicted of an offense containing an essential element that the jury has found the defendant didnot commit' " (People v Faccio, 33AD3d 1041, 1043 [2006], lv denied 8 NY3d 845 [2007], quoting People vTrappier, 87 NY2d 55, 58 [1995]). Reckless endangerment requires a showing that "undercircumstances evincing a depraved indifference to human life, [a defendant] recklessly engagesin conduct which creates a grave risk of death to another person" (Penal Law § 120.25; see People v Anderson, 38 AD3d1061, 1062 [2007], lv denied 8 NY3d 981 [2007]). The crimes of arson in thesecond degree and criminal mischief in the second degree require an intent to damage property(see Penal Law §§ 150.15, 145.10). There is "nothing inconsistent about oneacting with an intent to cause property damage while at the same time evidencing a consciousdisregard for the risk of death created by those same actions" (People v McGrath, 195AD2d 831, 833 [1993], lv denied 82 NY2d 851 [1993]). The verdicts were notrepugnant.
Defendant asserts that County Court improperly denied his motions for a continuance and toset aside the verdict based on the People's alleged failure to turn over written statements of anexpert witness who testified about cigarette combustion for the prosecution. The People must"disclose any recorded statement in its possession or control made by a person theprosecutor intends to call to the stand, which relates to the subject matter of the witness'testimony" (People v Santorelli, 95 NY2d 412, 422 [2000] [emphasis added]; seeCPL 240.45; People v Rosario, 9 NY2d 286, 289 [1961], cert denied 368 US 866[1961]). Defendant contends that two articles on cigarette combustion published by the expertduring the 1990s and the expert's notes on which the articles were based were subject to thisrequirement. This argument fails as he has not shown that these documents were in the People'spossession or control.
"[The Rosario] obligation simply does not arise where, as here, the People lackcontrol over the items in question and the entity in possession of them is not a law enforcementagency" (People v Washington, 86 NY2d 189, 193 [1995]). Thus, the obligation does notinclude a medical examiner's autopsy notes (see id. at 192), an accident report filed withthe Department of Motor Vehicles (see People v Flynn, 79 NY2d 879, 882 [1992]), or apersonal account of a sexual attack written by the victim (see People v Reedy, 70 NY2d826, 827 [1987]). Likewise, it does not extend to the notes and articles here, which were writtenby the independent expert witness long before the events at issue took place, at a time when hewas "working according to [his] own methods without being subjected to the control of the[People]" (People v Gillis, 220 AD2d 802, 805 [1995], lv denied 87 NY2d 921[1996]). Further, the expert's published articles were[*4]"just asaccessible to the defendant as they were to the prosecutor" (People v Rodriguez, 262AD2d 428, 429 [1999]; see People v Kelly, 88 NY2d 248, 251). Defendant identifies noauthority supporting his further claim that the Rosario requirement applies to a transcriptof the expert's testimony in a previous, unrelated Warren County trial, and we decline to findsuch a requirement in this case. The expert had testified in some 500 to 600 prior cases, andalthough his testimony in the trial in question apparently involved similar scientific principles,there was no direct factual nexus. Accordingly, there was no Rosario violation.
Defendant next contends that the two orders of protection issued against him violate CPL530.12 (5) in that their 30-year duration exceeds eight years from the date of expiration of themaximum term of his sentence. County Court calculated the duration of the orders by addingeight years to defendant's 22-year maximum term and set the orders of protection to expire onJuly 18, 2037, 30 years after his sentencing date. As the People concede, the date of expiration ofdefendant's sentence will be affected by the time he spent incarcerated while awaiting trial, andthe court failed to "tak[e] into account any jail time credit to which defendant is entitled"(People v Holmes, 294 AD2d 871, 872 [2002], lv denied 98 NY2d 730 [2002]).The matter must therefore be remitted to the court to determine the amount of jail time credit towhich defendant is entitled and to specify a duration for the orders of protection eight years afterthe expiration of his maximum term of imprisonment (see People v Goodband, 291AD2d 584, 585-586 [2002]). In addition, defendant's 22-year determinate term includes afive-year term of postrelease supervision. We have previously held that "a mandatory period ofpostrelease supervision imposed upon a determinate sentence is part of the sentence ofimprisonment actually imposed for purposes of calculating the duration of [an] order ofprotection" (People v Crowley, 34AD3d 866, 868 [2006], lv denied 7 NY3d 924 [2006] [internal quotation marks andcitations omitted]). In calculating the expiration of defendant's maximum term upon remittal thefive-year period of postrelease supervision should be added to his 22-year maximum term(see People v Goodband, 291 AD2d at 586).
With regard to the restitution award, the People concede that County Court had previouslyordered at an initial hearing that the restitution award would not exceed $705,000 based upon thePeople's stipulation to accept that amount. Thus, the restitution award should be modified to$705,000, with a 5% surcharge of $35,250, for a total award of $740,250.
Finally, we reject defendant's claim that his sentence is harsh and excessive as we find noabuse of discretion by the sentencing court or extraordinary circumstances that warrantintervention (see People v Delgado, 80 NY2d 780, 783 [1992]; People v Rollins, 51 AD3d 1279,1282-1283 [2008], lv denied 11 NY3d 930 [2009]; People v Strong, 27 AD3d 1010, 1013 [2006], lv denied 7NY3d 763 [2006]).
Rose, J.P., Kane, Stein and McCarthy, JJ., concur. Ordered that the judgment is modified, onthe law and the facts, by reducing the amount of restitution awarded to $705,000 with a 5%surcharge of $35,250; matter remitted to the County Court of Warren County to determine theappropriate duration of the orders of protection; and, as so modified, affirmed.