| People v Flemming |
| 2012 NY Slip Op 09103 [101 AD3d 1483] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Sherry L.Flemming, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered May 5, 2011, upon a verdict convicting defendant of the crimes of arson in the thirddegree (three counts) and attempted arson in the third degree.
In June 2010, defendant confessed to setting—over the course of a one-yearperiod—a string of fires in her neighborhood in the Town of Southport, Chemung County,including an incident where she set fire to her husband's pickup truck. As a result, defendant wascharged in two indictments with various counts of arson. Following a jury trial, defendant wasconvicted of three counts of arson in the third degree and one count of attempted arson in thethird degree.[FN1]Defendant subsequently was sentenced to an aggregate prison term of 4 to 12 years and orderedto pay restitution. Defendant now appeals contending, among other things, that the verdict isagainst the weight of the evidence.[*2]
We affirm. Initially, we reject defendant's assertion thatCounty Court erred in denying her motion to suppress her written statement. "Whether astatement is voluntary is a factual question to be determined from the totality of thecircumstances" (People v Heesh, 94AD3d 1159, 1160 [2012] [citations omitted], lv denied 19 NY3d 961 [2012]; see People v Button, 56 AD3d1043, 1044 [2008], lv dismissed 12 NY3d 781 [2009]), and the suppression court'scredibility determinations, if supported by the record as a whole, will not be disturbed (seePeople v Button, 56 AD3d at 1044; People v Davis, 18 AD3d 1016, 1017 [2005], lv denied 5NY3d 805 [2005]).
Here, Nicholas DeMuth, one of the investigators assigned to the case, testified at theHuntley hearing that defendant voluntarily accompanied him to the Chemung CountySheriff's Department in June 2010 to discuss a May 20, 2010 fire involving her husband's truck.Upon arrival, defendant was advised of her Miranda warnings and, after executing awritten waiver thereof, elected to proceed with questioning. After being advised that her accountof the subject fire was inconsistent with certain forensic evidence, defendant admitted herinvolvement in each of the seven fires charged in the indictments. At this point, DeMuthprovided defendant with photos of the various fires, upon which she placed certain notations andher initials. Defendant then provided a written statement, which she subsequently reviewed andsigned. DeMuth testified that at no point during the approximately five hours of questioning wasdefendant handcuffed, restrained or threatened in any manner, nor did she ask to stop theinterview or request an attorney. Finally, DeMuth stated that during this time, defendant wasoffered and took a number of cigarette and bathroom breaks. Although defendant's daughterpresented a contrary account, contending that defendant was threatened with the arrest of hergrandson if she did not admit to her involvement in the fires, County Court credited DeMuth'stestimony and deemed defendant's statement to be voluntary. Upon our review of the record, wediscern no basis upon which to disturb County Court's finding (see People v Pouliot, 64 AD3d1043, 1045-1046 [2009], lv denied 13 NY3d 838 [2009]; People v Button,56 AD3d at 1044; People v Davis, 18 AD3d at 1017).
Defendant's challenge to the legal sufficiency and weight of the evidence is equallyunpersuasive. Defendant was convicted of three counts of arson in the third degree stemmingfrom her involvement in a May 12, 2009 garage fire at 763 Cedar Street in the Town ofSouthport, Chemung County, a September 23, 2009 fire at nearby 761 Cedar Street and the May20, 2010 fire involving her husband's truck. "A person is guilty of arson in the third degree whenhe [or she] intentionally damages a building or motor vehicle by starting a fire or causing anexplosion" (Penal Law § 150.10 [1]). Where, as here, a defendant has confessed to a crime,he or she "may not be convicted . . . solely upon evidence of a confession oradmission made by him [or her] without additional proof that the offense charged has beencommitted" (CPL 60.50). Such additional proof, however, "need not establish guilt or everydetail of the crime or confession" (People v Johnson, 79 AD3d 1264, 1266 [2010], lv denied16 NY3d 832 [2011]); rather, the corroboration requirement "is satisfied by the production ofsome proof, of whatever weight, that a crime was committed by someone" (People vDaniels, 37 NY2d 624, 629 [1975]; accord People v Thompson, 75 AD3d 760, 764 [2010], lvdenied 15 NY3d 893, 894, 896 [2010]; see People v Baltes, 75 AD3d 656, 659 [2010], lv denied15 NY3d 918 [2010]; People vBrown, 20 AD3d 577, 578 [2005], lv denied 5 NY3d 826 [2005]). "Thenecessary additional evidence may be found in the presence of defendant at the scene of thecrime . . . or other circumstances supporting an inference of guilt" (People vBaltes, 75 AD3d at 659 [internal quotation marks and citation omitted]).[*3]
Defendant initially captured the attention of local lawenforcement because each of the subject fires occurred in close proximity to her residence onCedar Street[FN2]and, for many of those fires, defendant either initiated the underlying 911 call, was a witness tothe fires or provided other information regarding the fires. With respect to the May 2009 garagefire at 763 Cedar Street, defendant's written statement reveals that she used her cigarette lighterto set fire to the interior of her neighbor's garage on that date, following which she returned homeand called 911. Defendant admittedly was home on the night of the fire, the origin of the fire wasconsistent with defendant's prior written description thereof and the property owner testified that,in addition to notifying him of the fire on the night in question, defendant approached him thefollowing day and expressed an interest in purchasing the property. As to the September 23, 2009fire at 761 Cedar Street, defendant's written statement indicates that she approached the backporch of that residence and, after sliding open a window, used her cigarette lighter to set fire to aset of sheer curtains—curtains that she had left behind when she and her husband movedback into their rebuilt home. According to defendant's statement, as she returned to her residence,she could hear the smoke alarm going off and called the Sheriff's Department.
Two State Troopers, Nicholas Medina and Jason Fifield, responded to the scene and weremet in the middle of the street by defendant's husband. Although defendant would later tellFifield that she had heard the smoke alarm from inside her own kitchen, both Fifield and Medinatestified that they did not hear the alarm when they exited their vehicles and could not hear ituntil they actually approached the residence at 761 Cedar Street. As Medina neared and peeredthrough the open window on the back porch at that location, he saw the fire directly beneath thewindow and returned to his vehicle to retrieve a fire extinguisher. Although a set of fingerprintslifted from the scene did not match exemplars taken from defendant, defendant's trial testimonyplaces her in the general vicinity of the fire on the night in question and her husband's testimonyplaces her outside of their residence shortly before reporting to him that she could hear some sortof alarm sounding. Additionally, both Medina's testimony as to the location of the fire andFifield's observation of a melted curtain near the rear window were consistent with defendant'sprior written description of the manner in which she started the fire.
Finally, as to the May 20, 2010 truck fire at defendant's residence, defendant's writtenstatement reflects that she used the keys to unlock her husband's truck and, while looking for asweatshirt, noticed some school papers belonging to her grandson lying on the back seat of thevehicle. Defendant then used the cigarette she was smoking to set fire to the papers and,according to defendant, the fire then spread to the center console area and rear floor board. Afterclosing (and apparently relocking) the door, defendant walked over to the fence line on herproperty and struck up a conversation with her neighbors. Shortly thereafter, one of the neighborsnoticed the fire, retrieved the keys from defendant, unlocked the door to the truck andextinguished the fire with a garden hose.
The next-door neighbor recounted her conversation with defendant that evening and attestedto her role in extinguishing the fire. Another neighbor also testified that, on the evening [*4]in question, he observed that the truck belonging to defendant'shusband was parked near defendant's rear property line—quite some distance from thehouse. According to this neighbor, the location of the truck that evening was atypical, as thevehicle usually was parked right behind defendant's residence. Additionally, the fire investigatorwho examined the truck noted the extensive damage to the rear of the center console andopined—consistent with defendant's prior statement—that this was where the firehad originated. The investigator, who ruled out all natural and/or accidental causes of the fire,further testified that if papers had been set on fire underneath or near the rear of the centerconsole/armrest, that would be consistent with a possible cause of the fire.
In light of the foregoing, and based upon our review of the record as a whole, we are satisfiedthat defendant's written statement was sufficiently corroborated by, among other things, herproximity to the fires on the nights in question, the testimony adduced regarding the actuallocation and origin of the fires and defendant's otherwise curious or suspicious behavior either atthe time of or immediately following these three fires. Hence, we discern no basis upon which todisturb the jury's verdict as to these counts.
We reach a similar conclusion regarding the verdict convicting defendant of attempted arsonin the third degree, which stemmed from a fire in a recycling bin located on the rear porch of 753Spruce Street, located to the rear of defendant's property. According to defendant's writtenstatement, on the evening of October 10, 2009, she entered the rear porch of that residence and,using her cigarette lighter, set fire to some cardboard and papers inside of a recyclingbin.[FN3]As defendant was reentering her back yard, she heard someone on the rear porch of the SpruceStreet residence and returned to discover the homeowner dousing the fire with a jug of water.Defendant then used some dirt to help put out the fire, returned home and called 911.
A Chemung County Sheriff's Deputy testified that he responded to a call from defendant'sresidence and, upon arriving, was advised by defendant that she could smell smoke in the air.The deputy traced the smell to a nearby campfire and then returned to report his discovery todefendant, at which time defendant advised him of the fire at 753 Spruce Street. The investigatorfollowed defendant to that address and observed some charred cardboard on the porch floor nextto the recycling bin. Additional personnel were summoned to the scene, and one of theinvestigators recovered a cigarette butt—apparently of recent vintage. DNA analysis ofthat cigarette butt matched the DNA present on a buccal swab subsequently obtained fromdefendant. Such proof, in our view, is more than sufficient to corroborate defendant's writtenstatement and sustain her conviction of attempted arson in the third degree. Defendant'sremaining contentions, including her assertion that the sentence imposed is harsh and excessive,have been examined and found to be lacking in merit.
Peters, P.J., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Of the seven counts charged inthe two indictments, defendant was convicted of four counts and acquitted of two counts, andCounty Court declared a mistrial as to the remaining count upon which the jury could not reach averdict.
Footnote 2: In January 2009, a fire destroyeddefendant's residence at 762 Cedar Street and, in or about April 2009, she and her husbandrelocated to rental property across the street at 761 Cedar Street. In mid-August 2009, defendantand her husband returned to their newly rebuilt house at 762 Cedar Street.
Footnote 3: Immediately prior to this,defendant was on her own back porch smoking a cigarette.