| People v Alnutt |
| 2013 NY Slip Op 04366 [107 AD3d 1139] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJeffrey E. Alnutt, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown, for respondent.
Egan Jr., J. (1) Appeal from a judgment of the County Court of Fulton County(Giardino, J.), rendered August 19, 2010, upon a verdict convicting defendant of thecrimes of murder in the second degree, manslaughter in the second degree, arson in thesecond degree, arson in the third degree and reckless endangerment in the second degree,and (2) motion to take judicial notice of certain documents.
On December 21, 2007, defendant was the owner of various rental properties,including a building located at 22 Park Street in the City of Gloversville, Fulton County.The property in question was a two-unit residential dwelling located on the corner ofPark and Burr Streets. The upstairs apartment was occupied by Gary Romaine and hisgirlfriend, Deborah Morris, and the downstairs apartment was occupied by defendant'sgirlfriend, Amber Slaybaugh.[FN1]
Between 10:00 p.m. and 10:30 p.m. that evening, Thomas Houghton, who wassmoking a cigarette on his porch at 16 Park Street, saw defendant enter the hallwayleading to Romaine and Morris's upstairs apartment. Shortly thereafter, defendantemerged and walked around the front of the residence toward the Burr Street side of theproperty. At approximately 10:30 p.m., [*2]Nancy Keba,who lived across the street from defendant's property, awoke to find defendant arguingwith Morris near the front porch of that residence. Keba could hear only portions of theconversation and thereafter returned to bed.[FN2]At approximately 11:30 p.m., Betsy Houghton (Thomas Houghton's wife and Romaine'scousin) saw defendant—carrying what "looked like a red gas can"—walk upBurr Street onto the porch of 22 Park Street and enter the downstairs apartment. Twentyminutes later, at 11:50 p.m., a 911 call was placed reporting a structure fire at thataddress, and firefighters arrived to find the first floor of the Burr Street side of theproperty fully engulfed in flames.
In the interim, Romaine awoke to the sound of neighbors pounding on the exteriordoor of the residence and was able to safely exit the premises. Upon being advised thatMorris was believed to still be inside, firefighters twice attempted to gain access to theupstairs apartment—only to be turned back by heavy smoke and heat so intensethat it damaged their helmets and thwarted their attempts to locate Morris through the useof a thermal imaging device.[FN3]The fire ultimately spread to the upstairs apartment, where Morris's severely charredbody was recovered early the next morning.[FN4]During the course of the ensuing investigation, a state fire official discovered "a piece ofmelted [red] plastic in the debris" in the dining room of Slaybaugh's apartment that "wasconsistent with . . . a gasoline container."
Defendant thereafter was indicted and charged with murder in the second degree,manslaughter in the second degree, arson in the second degree, arson in the third degreeand reckless endangerment in the second degree. Following a lengthy jury trial,defendant was convicted as charged and sentenced to an aggregate prison term of 25years to life.[FN5] Defendant [*3]now appeals.[FN6]
We affirm. Initially, we reject defendant's numerous challenges to the eavesdroppingwarrant issued in this matter. Upon reviewing the detective's sworn affidavit in supportof the warrant, which referenced statements made by certain identified witnesses, as wellas the results of the underlying fire investigation, we are satisfied that the Peopleestablished both probable cause for the warrant and, further, that traditional investigatorymeasures were unlikely to succeed (see CPL 700.15 [2], [4]; 700.20 [2] [b], [d];People v Ross, 97 AD3d843, 844 [2012], lv denied 20 NY3d 935 [2012]).[FN7]On this latter point, we note that defendant had worked as a confidential informant forthe Gloversville Police Department and, as such, was familiar with, among other things,that agency's surveillance personnel, vehicles and techniques. Additionally, contrary todefendant's assertion, the detective's detailed trial testimony regarding the manner inwhich defendant's phone calls were intercepted and monitored demonstrated thatappropriate minimization procedures (see CPL 700.30 [7]) were both establishedand employed (see generally People v Floyd, 41 NY2d 245, 248-250 [1976]).Defendant's remaining arguments on this point—including his assertion that thePeople failed to timely serve him with notice of the eavesdropping warrant (seeCPL 700.50 [3]), demonstrate exigent circumstances with regard to the postponementthereof (see CPL 700.50 [4]) and judicially seal the pertinent recordings(see CPL 700.50 [2])—have been examined and found to be lacking inmerit.
Nor are we persuaded that County Court erred with respect to certain of its pretrialrulings. Although defendant argues—in the context of County Court'sSandoval ruling—that the People should not have been permitted toinquire regarding his 1987 bail-jumping conviction, we considered and rejected a similarclaim on defendant's direct appeal from his prior conviction (People v Alnutt, 101 AD3d1461, 1463-1464 [2012]) and, for the reasons set forth therein, we again finddefendant's argument on this point to be without merit.[*4]
Defendant's various challenges to County Court'sMolineux rulings—to the extent that they have been preserved for ourreview—are equally unpersuasive. The People's theory of the case was thatdefendant—facing dwindling resources, mounting indebtedness and growingfrustration over Slaybaugh's drug use and threatened infidelity—set the fire inorder to collect on his insurance policy; defendant, in turn, suggested from the very startthat the fire had been set by drug users or dealers in the community as retaliation fordefendant's work as a confidential informant.[FN8]In our view, evidence of defendant's use or possession of drugs, as well the tumultuousnature of his relationship with Slaybaugh, provided necessary background information(see People v Burnell, 89AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]) and was relevantto any number of recognized Molineux exceptions—including motive andintent (see People v Molineux, 168 NY 264, 293 [1901]). We also are satisfiedthat County Court properly balanced the probative value of such evidence against itsprejudicial effect and, to that end, gave frequent and appropriate limiting instructionsthroughout the course of the trial.
Turning to the underlying convictions, defendant's generalized motion for a trialorder of dismissal based upon legally insufficient evidence was not "specificallydirected" (People v Gray, 86 NY2d 10, 19 [1995] [internal quotation marks andcitation omitted]) at the deficiencies now being urged and, therefore, this issue isunpreserved for our review (seePeople v Townsend, 94 AD3d 1330, 1330 n 1 [2012], lv denied 19NY3d 1105 [2012]). That said, "our weight of the evidence review necessarily involvesan evaluation of whether all elements of the charged crime[s] were proven beyond areasonable doubt at trial" (People v Burch, 97 AD3d 987, 989 n 2 [2012], lvdenied 19 NY3d 1101 [2012] [internal quotation marks and citations omitted]).Based upon our review of the record as a whole, we find that the verdict is not againstthe weight of the evidence.
Although defendant is correct in noting that this was a circumstantial case, the proofagainst him nonetheless was compelling. On the day of the fire, several neighborsobserved defendant and Slaybaugh, the latter of whom had just been expelled from aresidential treatment program,[FN9]removing Slaybaugh's belongings from the downstairs apartment at 22 ParkStreet[FN10]—ostensibly because defendant had procured an apartment for her in the Town ofTully, Onondaga County.[FN11]Following an argument regarding, among other things, Slaybaugh's failed attempts at[*5]treatment, defendant and Slaybaugh parted companyfor the remainder of the day. Although various neighbors testified that they did not seeSlaybaugh again until after the fire, Keba—it will be recalled—observeddefendant arguing with Morris shortly before her death, and Betsy Houghton sawdefendant carry what "looked like a red gas can" into 22 Park Street shortly before thefire was discovered.
In addition to the testimony placing defendant at the scene on the night in question,the record also reflects that defendant was under growing personal and financial pressureat the time of the fire. By all accounts, Slaybaugh and defendant had a volatilerelationship fueled by drugs and jealousy and punctuated with frequent altercations.Indeed, during a phone call placed on the night of the fire, Slaybaugh told defendant thatshe "would go have sex with another man if he didn't get [her] drugs." Romaine testifiedas to defendant's lack of available cash on the day of the fire, and an investigator for theState Police Financial Crimes Unit, who conducted an audit of defendant's businessrecords, testified that defendant's various enterprises and rental properties had suffered amarked decline in sales and/or profitability.[FN12]Additionally, Kenneth Burton, Slaybaugh's uncle, testified that he was present for aNovember 2007 argument between defendant and Slaybaugh regarding "some financialdifficulties," during the course of which defendant said that "he was sick of it all" and"wished [that] all [of] his places would burn."
Finally, the jury was presented with expert testimony as to the results of the causeand origin investigation, which ruled out all natural or accidental causes of the fire. Asnoted previously, a melted red plastic container—consistent with a gasolinecontainer—was found on the dining room floor in Slaybaugh's apartment, and thestate fire investigator testified that there was a "protected area" beneath thecontainer—indicating that "it was sitting on the floor at the time of the fire."Additionally, after washing down the tile floor in the dining room, the floor revealed ablackened, irregularly shaped pattern in the area where the remnants of the plasticcontainer had been found—indicating that the "blackened [area] had been exposedto a greater degree of heat."
To be sure, certain inconsistencies existed with respect to the time line established bythe People's various witnesses, and defense counsel's cross-examination of BetsyHoughton revealed issues that could have caused the jury to question hertestimony.[FN13]Additionally, Slaybaugh's mother testified that defendant arrived at her house in theTown of Mayfield, Fulton County at approximately 11:45 p.m.—raising a questionas to whether defendant had sufficient time to set the fire in Gloversville and arrive inMayfield five minutes before the 911 call reporting the fire was placed. The jury,however, was fully aware of the inconsistencies and conflicting proof relied upon bydefendant and, further, had the advantage of observing the witnesses and assessing theircredibility and/or motives first hand (see People v Gragnano, 63 AD3d 1437, 1441-1442 [2009],lv denied 13 NY3d 939 [2010]; People v Casey, 61 AD3d 1011, [*6]1013-1014 [2009], lv denied 12 NY3d 913 [2009]).On balance, we do not find that the jury failed to accord the evidence the weight itdeserved.
Nor are we persuaded that defendant was denied the effective assistance of counsel.To the extent that defendant's argument is premised upon counsel's alleged failure toadequately investigate certain issues, this claim implicates matters outside of the recordand, as such, is more appropriately considered in the context of a CPL article 440 motion(see People v Stroman, 106AD3d 1268, 1271 [2013]). As for counsel's asserted failure to pursue certain pretrialhearings, we need note only that the failure to make a particular pretrial motion doesnot—per se—constitute ineffective assistance of counsel (see People v Carbone, 101AD3d 1232, 1235 [2012]). We reach a similar conclusion regarding counsel's failureto object to certain testimony upon Molineux grounds. As to the balance ofdefendant's claim, although defendant indeed is entitled to meaningful representation, heis not entitled to a perfect or error-proof trial (see People v Jones, 101 AD3d 1241, 1242 [2012]; People v Battease, 74 AD3d1571, 1575 [2010], lv denied 15 NY3d 849 [2010]). Here, despitedefendant's protestations to the contrary, the record reflects that counsel madeappropriate opening and closing statements, motions and objections, vigorouslycross-examined the People's witnesses and articulated a viable—albeitunsuccessful—defense. Accordingly, we are satisfied that defendant receivedmeaningful representation (seePeople v O'Daniel, 105 AD3d 1144, 1147 [2013]; People v Davis, 105 AD3d1095, 1097-1098 [2013]).
Finally, we reject defendant's assertion that the sentence imposed was harsh andexcessive. Defendant stands convicted of, among other things, a class A-I felony thatresulted in the death of one of his tenants—a death occasioned by defendant'sselfish attempt to resolve his financial difficulties through arson. Simply put, uponreviewing defendant's criminal history and taking into consideration the particular factsof this case, we discern no basis upon which to disturb the sentence imposed by CountyCourt. Defendant's remaining contentions, including his baseless assertion ofprosecutorial misconduct and claimed violation of the Interstate Agreement on DetainersAct (see 18 USC Appendix 2, § 2; CPL 580.20), have been examined andfound to be lacking in merit.
Stein, J.P., Spain and Garry, JJ., concur. Ordered that the motion is granted. Orderedthat the judgment is affirmed.
Footnote 1: Defendant's wife andfamily resided in Onondaga County.
Footnote 2: According to Keba, sheheard Morris say, "Don't do it." Calli Barnes, who lived at 17 Park Street, also testifiedthat she saw defendant talking to Morris that evening—although Barnes estimatedthat this conversation occurred between 11:00 p.m. and 11:30 p.m. Like Keba, Barnescould not overhear the entire conversation, but she testified that she heard defendant tellMorris that "he didn't have a choice."
Footnote 3: The captain of theGloversville Fire Department testified that a fire of this magnitude was unusual withinthe city limits, as the department's response times generally limited the damage resultingfrom a structure fire to "a room and contents kind of thing." Here, despite the fact that thefirefighters were at the scene "between one and two minutes fully geared and ready togo," the fire at 22 Park Street already "was burning hot."
Footnote 4: A subsequent autopsyrevealed that Morris died as the result of "asphyxia due to smoke inhalation and theinhalation of heated products of combustion," and her manner of death was classified asa homicide.
Footnote 5: In the interim, andunbeknown to the jury in this matter, defendant was convicted of arson in the thirddegree, insurance fraud in the second degree, insurance fraud in the third degree (twocounts), grand larceny in second degree, grand larceny in the third degree (two counts),reckless endangerment in the second degree, conspiracy in the fourth degree andconspiracy in the fifth degree after he was found to have set fire in January 2004 toanother apartment building that he owned in Gloversville. Defendant was sentenced to anaggregate prison term of 5 to 15 years and ordered to pay restitution; upon appeal, thisCourt affirmed his conviction (People v Alnutt, 101 AD3d 1461 [2012]).
Footnote 6: In conjunctiontherewith, defendant moved for this Court to take judicial notice of various documents,including a federal indictment charging him with certain crimes and the correspondingjudgment rendered in that matter, together with seven pages of orders issued inconnection with either this matter or defendant's prior conviction. As all of the citeddocuments are matters of public record—two of which already are included in therecord on appeal—defendant's motion is granted (see generally Matter of Jeffries vSteiner, 85 AD3d 1431, 1431 n [2011]).
Footnote 7: The detective's swornaffidavit also provided the reasonable suspicion required for the issuance of the relatedpen register order (see CPL 705.10 [2]).
Footnote 8: Indeed, while the firewas still in progress and before anyone could even assess—much less articulate anopinion regarding—the cause of the blaze, defendant shared this belief with a lawenforcement official.
Footnote 9: Slaybaugh, by her ownadmission, had a $1,000/day crack habit at this time and had been in and out of varioustreatment programs throughout December 2007.
Footnote 10: Witness accountsdiffered slightly as to whether Slaybaugh's belongings were being loaded into the rentalvan that defendant was driving that day or the garage of the residence.
Footnote 11: Notably, at onepoint during this process, defendant asked Romaine to find a gas can and get somegasoline for a truck that was parked in the driveway. Romaine's efforts proved to beunsuccessful.
Footnote 12: As of January 2008,defendant's bank accounts collectively reflected a negative balance and, as of February2008, defendant owed his creditors $457,083.
Footnote 13: As noted previously,Romaine was Betsy Houghton's cousin, and Houghton acknowledged oncross-examination that she made no mention of the red plastic gas can in her statement tothe police.