| People v Abare |
| 2011 NY Slip Op 05993 [86 AD3d 803] |
| July 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Tina Abare,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedFebruary 16, 2010, upon a verdict convicting defendant of the crime of attempted arson in thesecond degree.
In June 2009, defendant's neighbor observed defendant squirt or throw a clear liquid onto thefirst-floor porch of an apartment building and then make motions as if striking matches beforefleeing the scene. The neighbor went to warn the residents of the first-floor apartment about whatshe had witnessed. This neighbor and the police, who arrived shortly thereafter, observed that theporch was wet and found matches, an empty matchbook, and an empty bottle of lighter fluid onand near the porch. Defendant was arrested and indicted on one count of attempted arson in thesecond degree. She was convicted by jury verdict and sentenced to five years in prison with threeyears of postrelease supervision. Defendant appeals.
Initially, defendant contends that her conviction was against the weight of the evidencebecause she lacked any motive to commit arson, and because two trial witnesses—aresident of the first-floor apartment and the neighbor—were not credible. As a differentfinding by the jury would not have been unreasonable, "this Court 'must, like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People v Shepherd, 83 AD3d1298, 1298 [2011], quoting Peoplev Romero, 7 NY3d 633, 643 [2006]). As relevant here, "[a] person is guilty of [*2]arson in the second degree when he [or she] intentionally damages abuilding . . . by starting a fire, and when (a) another person who is not a participantin the crime is present in such building . . . at the time, and (b) the defendant knowsthat fact or the circumstances are such as to render the presence of such a person therein areasonable possibility" (Penal Law § 150.15). Further, "[a] person is guilty of an attempt. . . when, with intent to commit a crime, he [or she] engages in conduct whichtends to effect the commission of such crime" (Penal Law § 110.00).
The first-floor resident testified that she and defendant had argued, and that the police hadresponded to two calls she had made earlier that day reporting defendant's conduct. This witnessfurther testified that she had been on the porch approximately 20 minutes before the subjectincident, it had appeared dry, and there was not a lighter fluid bottle or matches in the vicinity atthat time. The neighbor testified that she observed defendant squirt or throw a clear liquid ontothe first-floor resident's porch and then make motions with her hands as if she was strikingmatches. When police arrived, they recovered matches, an empty matchbook and an empty bottleof lighter fluid from the porch, observed that the porch was wet, and smelled lighter fluid.Defendant denied having any arguments with the first-floor resident or that she attempted to setfire to the porch. She described grilling food earlier in the day, attributing the presence ofmatches and lighter fluid on the porch to this activity. She admitted to drinking alcohol beginningin the early morning and continuing throughout the day. Defendant resided in the building at thetime, and testified that she would not have tried to set a fire on the premises, as her belongingsand her pets were in her apartment above. According great deference to the jury's credibilitydeterminations (see People v King,77 AD3d 1173, 1175 [2010]; People v Clairmont, 75 AD3d 920, 923 [2010], lv denied15 NY3d 919 [2010]), we find that there was ample evidence of defendant's motive, an issueconsidered although not an element of the crime (see People v Richardson, 55 AD3d 934, 937 [2008], lvdismissed 11 NY3d 857 [2008]). Further, viewing all of the evidence in a neutral light, theverdict was supported by the weight of the evidence (see People v Cardenas, 79 AD3d 1258, 1261 [2010], lvdenied 16 NY3d 857 [2011]).
Defendant's assertion that she was denied a fair trial by improper and prejudicial questioningduring cross-examination about her failure to proclaim to police that she was innocent prior tobeing arrested and a later reference during summation regarding her prearrest silence is, as sheconcedes, not preserved for our review. County Court's failure to give a curative instruction waserror (see People v De George, 73 NY2d 614, 618-619 [1989]; People v Conyers,52 NY2d 454, 458-459 [1981]; People vMurphy, 51 AD3d 1057, 1058 [2008], lv denied 11 NY3d 792 [2008]), but wedecline to exercise our interest of justice jurisdiction, finding the error harmless in light of theoverwhelming evidence of defendant's guilt (see People v Watson, 299 AD2d 735, 738[2002], lv denied 99 NY2d 633 [2003]; People v Ryan, 240 AD2d 775, 777[1997], lv denied 90 NY2d 910 [1997]).
Next, defendant claims that she was deprived of a fair trial because County Court improperlyadmitted hearsay. The People asked the first-floor resident what the neighbor said to her on theday of the incident but also stated, prior to any response, that the question was asked only toexplain what the resident did after speaking to the neighbor. Similarly, a police officer testified asto a statement by the resident's paramour reporting that the neighbor said that defendantattempted to set the porch on fire. In both instances, we find that County Court properlyoverruled defendant's objections, finding that the statements were not offered for their truth but,instead, to explain the actions taken by the resident and the officer thereafter (see People v Johnson, 79 AD3d1264, 1266-1267 [2010], lv denied 16 NY3d 832 [2011]). The court then also gaveappropriate limiting instructions (seePeople v Gregory, 78 AD3d 1246, 1246[*3][2010],lv denied 16 NY3d 831 [2011]; People v Machicote, 23 AD3d 264, 265 [2005], lv denied 6NY3d 777 [2006]). Defendant further argues that statements made by the first-floor resident andneighbor asserting that defendant had tried to set the fire were improperly admitted; thesearguments are not preserved, as she failed to object during trial. In any event, we find that theerror was harmless in light of the other evidence of defendant's guilt (see People v Kello,96 NY2d 740, 744 [2001]; People vBertone, 16 AD3d 710, 712 [2005], lv denied 5 NY3d 759 [2005]).
Defense counsel's failure to preserve these arguments for appellate review, as referencedabove, or to request limiting instructions regarding the hearsay statements did not render theassistance of counsel per se ineffective (compare People v Baltes, 75 AD3d 656, 661 [2010], lvdenied 15 NY3d 918 [2010]). The record reveals that counsel made appropriate pretrialmotions, effectively cross-examined witnesses and presented a consistent and reasonable,although ultimately unsuccessful, defense. Considering the totality of the circumstances, we findthat defendant received meaningful representation (see People v Benevento, 91 NY2d708, 712 [1998]; People v Phelan,82 AD3d 1279, 1283 [2011]).
Finally, we are unpersuaded that defendant's sentence was harsh and excessive. Thepermissible range was 3½ to 15 years; given defendant's criminal history and the seriousnature of the crime, we find no abuse of discretion nor extraordinary circumstances warranting areduction of the sentence imposed (see People v Cardenas, 79 AD3d at 1262).Defendant's alcohol abuse does not mitigate in her favor, "in light of [her] squanderedopportunities to address [her] alcohol problem" in the past (People v Elliot, 57 AD3d 1095, 1097-1098 [2008], lvdenied 12 NY3d 783 [2009]).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.