| People v Richardson |
| 2011 NY Slip Op 04839 [85 AD3d 1556] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Virginia Richardson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered April 17,2009. The judgment convicted defendant, upon a jury verdict, of arson in the third degree,insurance fraud in the third degree and making a false written statement.
It is hereby ordered that said appeal from the judgment insofar as it imposed a sentence ofincarceration is unanimously dismissed and the judgment is otherwise affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of,inter alia, arson in the third degree (Penal Law § 150.10 [1]) and insurance fraud in thethird degree (§ 176.20). Contrary to defendant's contention, County Court properly refusedto suppress statements that she made to a fire marshall. Based on the record of the suppressionhearing, we conclude that the totality of the circumstances at the time defendant was questionedby the fire marshalls establishes that defendant was not in custody prior to the administration ofMiranda warnings (see People vRegan, 21 AD3d 1357, 1358 [2005]; People v Langlois, 17 AD3d 772, 773-774 [2005]). We furtherconclude that the court properly denied defendant's request for a circumstantial evidence charge,inasmuch as the proof of guilt at trial did not rest exclusively on circumstantial evidence (seePeople v Roldan, 88 NY2d 826, 827 [1996]; People v Whitfield, 72 AD3d 1610 [2010], lv denied 15NY3d 811 [2010]). Defendant failed to preserve for our review her contention that the evidenceis legally insufficient to support the conviction of arson in the third degree inasmuch as she failedto renew her motion for a trial order of dismissal after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). Defendant alsofailed to preserve for our review her further contention that the court erred in omitting an elementof insurance fraud in the third degree from the jury charge (see People v Bermudez, 38 AD3d 1244 [2007], lv denied 8NY3d 981 [2007]). We decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Finally, we dismiss the appeal to the extent that defendant contends that the sentence is harshand excessive inasmuch as defendant has completed serving her sentence and thus that part of theappeal is moot (see People vMackey, 79 AD3d 1680 [2010]). Present—Scudder, P.J., Fahey, Lindley, Greenand Gorski, JJ.