| People v Baker |
| 2011 NY Slip Op 06714 [87 AD3d 1313] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ricky Baker,Appellant. (Appeal No. 1.) |
—[*1] Richard M. Healy, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered April 1,2010. The judgment convicted defendant, upon his plea of guilty, of misdemeanor driving whileintoxicated.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon hisplea of guilty of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]) and, inappeal No. 2, he appeals from a judgment convicting him of arson in the second degree (PenalLaw § 150.15) following a jury trial before the same County Court Judge who accepted theguilty plea in appeal No. 1. Contrary to defendant's contention in appeal No. 1, the court properlydetermined that the police officer had the requisite reasonable suspicion to believe that he hadcommitted a traffic infraction or criminal offense and thus properly stopped defendant's vehicle.The evidence presented at the suppression hearing established that a "radio computer checkrevealed that the license plates on the [vehicle that] the police observed the defendant operatingwere in fact issued for [and reported stolen from another vehicle, and thus] there was amplejustification for the stop of" defendant's vehicle (People v Lassiter, 161 AD2d 605,605-606 [1990]; see generally People v Singleton, 41 NY2d 402, 404 [1977]). Despitedefendant's further contention to the contrary, the record establishes that the officer correctlyentered the license plate number when performing a record check on the license plate. In anyevent, even if the officer had accidentally entered an incorrect license plate number, "[a] mistakeof fact . . . may be used to justify a [stop]" (People v Smith, 1 AD3d 965, 965 [2003]; see People v Jean-Pierre, 47 AD3d445 [2008], lv denied 10 NY3d 865 [2008]).
We reject defendant's contention in appeal No. 2 that the evidence is legally insufficient tosupport the conviction of arson (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The People presented evidence establishing that defendant set an apartment building inhis neighborhood on fire at approximately 3:30 a.m., that at least one other person who was not aparticipant in the crime was present in the building, and that "the circumstances [were] such as torender the presence of such a person therein a reasonable possibility" (Penal Law §150.15). Defendant's contention that there was no direct evidence establishing suchcircumstances is [*2]without merit. Here, "[e]vidence. . . that 'circumstances [were] such as to render the presence of [another personwho was not a participant in the crime inside the building] a reasonable possibility' may beinferred from both direct and circumstantial evidence" (People v Regan, 21 AD3d 1357, 1358 [2005], quoting Penal Law§ 150.15; see generally People v Ozarowski, 38 NY2d 481, 489-491 [1976]). Theevidence, including the testimony of the individuals in the building at the time of the fire and thephotographs of the building taken immediately after the fire, is legally sufficient to establish theexistence of such circumstances (seePeople v Lingle, 34 AD3d 287, 288 [2006], mod on other grounds 10 NY3d 457[2008]; People v Grassi, 92 NY2d 695, 698 [1999], rearg denied 94 NY2d 900[2000]). Furthermore, viewing the evidence in light of the elements of the crime of arson ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that the court erred in considering certain information indetermining the sentence to be imposed for the arson conviction. At the time of sentencing, theprosecutor contended that defendant was also responsible for setting another fire in defendant'sneighborhood, which resulted in a fatality, and the prosecutor asked the court to consider thatinformation in determining the sentence to be imposed for the arson conviction. In denyingdefendant's objection to the reference by the prosecutor to the other fire, the court indicated that itwould draw "proper" inferences from the information, and the court ultimately imposed themaximum sentence permissible for the arson conviction.
Although we do not address the length of the term of incarceration that was imposed, wenevertheless agree with defendant that the court erred in considering the other alleged fire, i.e., anuncharged crime, in determining the sentence for the arson conviction. It is well settled that,"[a]lthough a court may consider uncharged crimes in sentencing a defendant, it 'must assureitself that the information upon which it bases the sentence is reliable and accurate' " (Peoplev Bratcher, 291 AD2d 878, 879 [2002], lv denied 98 NY2d 673 [2002], quotingPeople v Outley, 80 NY2d 702, 712 [1993]; see People v Hansen, 99 NY2d 339,345 [2003]; People v Naranjo, 89 NY2d 1047, 1049 [1997]). There is no indication in therecord that the court ascertained the reliability of the information provided by the prosecutor,which was disputed by defendant and was not included in the presentence report or otherwisereferenced in the record before us. In addition, based on the record before us, we conclude thatthe sentence is illegal insofar as the period of postrelease supervision exceeds five years."Although [that] issue was not raised before the [sentencing] court . . . , we cannotallow an [illegal] sentence to stand" (People v Moore [appeal No. 1], 78 AD3d 1658[2010] [internal quotation marks omitted]; see People v Gibson, 52 AD3d 1227, 1227-1228 [2008]). Themaximum period of postrelease supervision that may be imposed upon a conviction of arson inthe second degree is five years, absent any indication that the arson was sexually motivated(see Penal Law § 70.45 [2-a] [f]; § 70.80 [1] [a]; § 130.91 [1], [2]).Inasmuch as there is nothing in the record establishing such a motivation, we vacate the period ofpostrelease supervision as well. Unless the People establish that the arson was sexuallymotivated, the maximum period of postrelease supervision shall be five years. We thereforemodify the judgment in appeal No. 2 by vacating the sentence imposed, and we remit the matterto County Court for resentencing. Present—Smith, J.P., Fahey, Peradotto, Lindley andSconiers, JJ.