| People v Burns |
| 2009 NY Slip Op 09091 [68 AD3d 1246] |
| December 10, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bruce D.Burns, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 7, 2007, upon a verdict convicting defendant of the crimes ofarson in the second degree, arson in the third degree and conspiracy in the fourth degree (twocounts).
On June 2, 2006, defendant's wife left him. The next day, she moved in with another man,Lawrence Rider. On June 6, 2006, a fire destroyed a storage barn containing valuable itemsowned by Rider in the Town of Gouverneur, St. Lawrence County. Investigators deemed the fireto be suspicious. Thereafter, at approximately 2:00 a.m. on July 25, 2006, another suspicious firewas discovered under the porch of a trailer where Rider was living with defendant's estrangedwife. The smell of smoke awoke defendant's wife and she alerted Rider so that the fire could beput out. As the result of a police investigation, a longtime friend of defendant, Stephen Sibley,was arrested on suspicion of arson for both fires. Sibley, who was later permitted to plead guiltyto a single count of attempted arson in the second degree in exchange for his cooperation,informed the police that he had been hired by defendant to set the fires in order to frightendefendant's wife and Rider or to "get [his wife] to talk to him or get even with [Rider]." Inexchange, defendant would give Sibley, who was unemployed, some cash and a St. Bernardpuppy.
In April 2007, a multicount indictment charged defendant with the commission of [*2]varying degrees of arson and conspiracy. A jury trial was held anddefendant was convicted of one count of arson in the second degree related to the July 2006 fire,one count of arson in the third degree related to the June 2006 fire and two counts of conspiracyin the fourth degree. Following imposition of sentence, this appeal ensued.
Initially, we are unpersuaded by defendant's contention that the evidence was legallyinsufficient to support his convictions. Specifically, defendant maintains that the testimony ofSibley was not sufficiently corroborated by independent evidence tending to connect defendantwith the commission of the charged crimes (see CPL 60.22 [1]). We disagree. "Whileaccomplice testimony must be corroborated with independent evidence, such evidence does nothave to be substantial as it need not establish the elements of the offense; instead, it is sufficientif it tends to connect the defendant to the crime, thereby assuring the jury that the accomplice hasoffered credible probative evidence" (People v Harrison, 251 AD2d 893, 894 [1998],lv denied 92 NY2d 949 [1998] [citations omitted]; see People v Gilbo, 52 AD3d 952, 953 [2008], lv denied11 NY3d 788 [2008]). Here, such corroborating proof was presented by, among other things,testimony from Rider and defendant's wife, who recounted the various threats made to them bydefendant during the relevant period (cf.People v Pierre, 41 AD3d 289, 290 [2007], lv denied 9 NY3d 880 [2007]). Thisevidence included defendant's statement to his wife prior to the July 2006 fire that she should"sleep with [her] eyes open because . . . I am sick of it and I will get you" (see People v Dann, 14 AD3d 795,796-797 [2005], lv denied 4 NY3d 885 [2005]). The People also presented independentevidence which, if credited, established that Sibley paid no money to defendant at the time hereceived the puppy from him.
We further disagree with defendant's contention that the People failed to present legallysufficient proof of defendant's liability for arson in the second degree because they allegedly didnot show that the "circumstances" of the July 2006 fire were such that the presence ofdefendant's wife in the trailer at the time of the fire was "a reasonable possibility" (Penal Law§ 150.15 [b]). However, not only did the fire occur at a time when defendant's wife wasalready asleep, but Sibley noted in his statement to the police that he "noticed vehicles parkednear the trailer." Sibley also testified that, in discussing plans for the July 2006 fire, defendanttold him that his estranged wife had just lost a job "so she wasn't going to be working." Thus,legally sufficient evidence was produced and, furthermore, viewing the evidence in a neutrallight and according deference to the jury's credibility determinations, we also conclude that theverdict was not against the weight of the evidence (see People v Portee, 56 AD3d 947, 949-950 [2008], lvdenied 12 NY3d 820 [2009]).
Next, defendant claims that County Court erred at trial in allowing an amendment of thesixth count of the indictment, alleging conspiracy in the fourth degree related to the storage barnfire, so that it correctly stated the proper month, June 2006, rather than the July 2006 date listedtherein. Contrary to defendant's argument, the correction of a typographical error of this nature iscontemplated by CPL 200.70 and we find no basis to conclude that the defense was prejudiced asa result. It is apparent from the phrasing of the sixth count of the indictment that it was referringto matters concerning the June 2006 fire. In addition, the bill of particulars contained the correcttime frames, as did the trial testimony. Thus, reversal is not warranted.
Furthermore, we are unpersuaded that County Court should have granted defendant's motionfor a mistrial after the prosecutor improperly asked a witness about an alleged prior bad act bydefendant in violation of the pretrial Molineux ruling. Not only was the matter harmlesserror (see People v White, 41 AD3d1036, 1038 [2007], lv denied 9 NY3d 965 [2007]), but the [*3]court gave prompt curative instructions to the jury. Similarly, whilethe People concede it was error on their part to ask a defense witness if he had been arrested(see People v Miller, 91 NY2d 372, 380 [1998]), we conclude that this error was alsoharmless under the circumstances herein (see id. at 381). In totality, contrary todefendant's contention, our review of these and other alleged errors by the People does not reveal"a flagrant and pervasive pattern of prosecutorial misconduct" (People v Demming, 116AD2d 886, 887 [1986], lv denied 67 NY2d 941 [1986]; accord People vDickson, 58 AD3d 1016, 1018 [2009], lv denied 12 NY3d 852 [2009]).
Lastly, we note that certain of the additional errors alleged by defendant—namely hisclaims that a juror was improperly dismissed, that statements from Sibley and the fireinvestigator were inadmissible hearsay and that the prosecutor improperly asked leadingquestions and inquired into a witness's inconsistent grand jury testimony—were notpreserved for appellate review. Defendant's remaining preserved arguments have been examinedand found to be lacking in merit.
Peters, Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.