| People v Anzalone |
| 2010 NY Slip Op 01276 [70 AD3d 1486] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniel P.Anzalone, Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedJanuary 10, 2008. The judgment convicted defendant, upon a jury verdict, of attempted arson inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of attemptedarson in the second degree (Penal Law §§ 110.00, 150.15), defendant contends thatthe conviction is not supported by legally sufficient evidence based on the circumstantialevidence standard charged to the jury. The general motion by defendant for a trial order ofdismissal is insufficient to preserve his contention for our review (see People v Gray, 86NY2d 10, 19 [1995]). In any event, that contention is without merit. The appropriate standard ofreview is not the circumstantial evidence standard but, rather, it is "whether the evidence, viewedin the light most favorable to the People, could lead a rational trier of fact to conclude that theelements of the crime have been proven beyond a reasonable doubt" (People v Cabey, 85NY2d 417, 421 [1995]; see People vPichardo, 34 AD3d 1223, 1224 [2006]). Here, the evidence is legally sufficient toestablish that defendant was the individual who attempted to start a fire in the building inquestion (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's further contention, County Court properly admitted in evidence avideotape reconstructing the incident. The videotape was relevant, and the People "establishedthat there was 'substantial similarity' between the conditions under which the [reconstructionwas] conducted and the conditions at the time of the event in question" (Matter of LuisC., 222 AD2d 268, 269 [1995], quoting People v Cohen, 50 NY2d 908, 910 [1980],rearg denied 50 NY2d 1060 [1980], cert denied 461 US 930 [1983]; seePeople v Wooten, 283 AD2d 931, 933 [2001], lv denied 96 NY2d 943 [2001]). "Anydifference between the [videotape] and the circumstances under which the [attempted arson]occurred went to the question of weight rather than admissibility" (People v Davis, 10 AD3d 583,583 [2004], lv denied 4 NY3d 743 [2004]; see People v Pierce, 270 AD2d 94, 95[2000], lv denied 95 NY2d 837 [2000]). Defendant failed to preserve for our review hiscontention that the prosecutor engaged in misconduct during summation by making a [*2]comment that shifted the burden of proof to defendant (see People v Coleman, 32 AD3d1239, 1240 [2006], lv denied 8 NY3d 844 [2007]; People v Pierce, 219AD2d 856 [1995], lv denied 87 NY2d 850 [1995]). In any event, that contention lacksmerit inasmuch as the allegedly improper comment by the prosecutor was merely fair commenton the evidence (see Coleman, 32 AD3d at 1240). Finally, the sentence is not undulyharsh or severe. Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.