| People v Harvin |
| 2010 NY Slip Op 06099 [75 AD3d 559] |
| July 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Freddie Harvin, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and David Korngold of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.),rendered April 22, 2008, convicting him of attempted arson in the second degree, recklessendangerment in the first degree, and criminal mischief in the fourth degree, after a nonjury trial,and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the conviction of attemptedarson in the second degree and reducing the conviction of reckless endangerment in the firstdegree to reckless endangerment in the second degree, and vacating the sentences imposedthereon; as so modified, the judgment is affirmed, and the matter is remitted to the SupremeCourt, Kings County, for sentencing to time served on the conviction of reckless endangermentin the second degree.
Contrary to the defendant's contention, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that theevidence established a valid line of reasoning and permissible inferences that could lead arational person to the conclusions that the defendant intended to damage a building by startingthe subject fire (see Penal Law § 150.15; People v Thomas, 214 AD2d439, 440 [1995]), and that in doing so he acted with depraved indifference to human life (seePenal Law § 120.25; seegenerally People v Anderson, 38 AD3d 1061, 1062 [2007]; People v Oreckinto,178 AD2d 562, 563 [1991]). Accordingly, the evidence was legally sufficient to support theconvictions of attempted arson in the second degree and reckless endangerment in the firstdegree (see generally People v Williams, 84 NY2d 925, 926 [1994]; People v Pickens, 60 AD3d 699,701 [2009]).
However, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]; People vBleakley, 69 NY2d 490, 495 [1987]), we find that the defendant's convictions of attemptedarson in the second degree and reckless endangerment in the first degree were against the weightof the evidence (see generally People vCahill, 2 NY3d 14, 62 [2003]; People v Pickens, 60 AD3d at 701-702). Theevidence, when properly weighed, did not prove, beyond a reasonable doubt, that the defendantintended to damage a building (see Penal Law § 150.15), rather than the propertyof another (see Penal Law § 150.01), by starting the subject fire (cf. People v Hodges, 66 AD3d1228 [2009]; People v [*2]Cushner, 46 AD3d 1121, 1124 [2007]; People vLabar, 278 AD2d 522 [2000]; People v Munoz, 253 AD2d 699, 700 [1998];People v Garcia, 162 AD2d 150 [1990]; People v Fisher, 112 AD2d 1008[1985]). Similarly, the evidence, when properly weighed, did not prove beyond a reasonabledoubt that the defendant, by starting the subject fire, acted with depraved indifference to humanlife, rather than with a reckless disregard that his conduct may create a substantial risk of seriousphysical injury to another person (cf. Penal Law § 120.25 with Penal Law §120.20; cf. People v Anderson, 38 AD3d at 1062; People v Narimanbekov, 258AD2d 417, 417 [1999]; People v Oreckinto, 178 AD2d at 563).
Nonetheless, because the evidence demonstrated, beyond a reasonable doubt, that thedefendant, by starting the subject fire, recklessly engaged in conduct that created a substantialrisk of serious physical injury to another person, we modify the judgment by reducing theconviction of reckless endangerment in the first degree to reckless endangerment in the seconddegree, a lesser-included offense that was charged in the indictment and submitted to, but notreached by, the trial court (see Penal Law § 120.20). However, since the defendanthas already served the maximum permissible sentence for that crime, the matter is remitted forsentencing to time served on the conviction of reckless endangerment in the second degree(see Penal Law § 70.15 [1]; cf. People v Oates, 33 AD3d 823, 824 [2006]; People v Deolall, 7 AD3d 635,636 [2004]).
In light of our determination, we need not reach the defendant's contention that the sentenceimposed on his conviction of attempted arson in the second degree was excessive. Rivera, J.P.,Balkin, Leventhal and Roman, JJ., concur.