| People v Norcutt |
| 2014 NY Slip Op 02164 [115 AD3d 1306] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AlanNorcutt, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered November 10, 2010. The judgment convicted defendant, upon a jury verdict, ofarson in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofarson in the third degree (Penal Law § 150.10 [1]), defendant contends that thePeople failed to establish that the "1978 Terry make Trailer" (trailer) to which he set firewas a "building" as defined in the arson statute and thus that the conviction is notsupported by legally sufficient evidence. We reject that contention.
A conviction is supported by legally sufficient evidence when, upon "viewing thefacts in a light most favorable to the People, 'there is a valid line of reasoning andpermissible inferences from which a rational jury could have found the elements of thecrime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349 [2007]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). "A person is guilty of arsonin the third degree when he intentionally damages a building or motor vehicle by startinga fire or causing an explosion" (Penal Law § 150.10 [1]). For purposes of thearson statute, a " '[b]uilding[,]' in addition to its ordinary meaning, includes any structure,vehicle or watercraft used for overnight lodging of persons, or used by persons forcarrying on business therein" (§ 150.00 [1]).
"The 'ordinary meaning' of the term 'building' has been alternatively defined as 'aconstructed edifice designed to stand more or less permanently, covering a space of land,usu[ally] covered by a roof and more or less completely enclosed by walls, and serving asa dwelling' . . . , 'a structure with a roof and walls' . . . '[a]structure or edifice inclosing a space within its walls and usually, but not necessarily,covered with a roof' . . . The term generally, though not always, implies theidea of a habitat for a person's permanent use or an erection connected with his or herpermanent use" (People vFox, 3 AD3d 577, 578 [2004], lv denied 2 NY3d 739 [2004]).[*2]
In Fox, the Second Department analyzedwhether a structure erected by a group of homeless people constituted a building forpurposes of the arson statute. That structure had "two side walls consist[ing] of. . . fixed and unmovable fences. The remaining two walls consisted ofcarpets draped over a clothesline . . . A piece of plywood providedadditional support to one side of the structure . . . The entrance was coveredby shower curtains and blankets and the entire shelter was covered by a [large] tarp. Theresidents slept in sleeping bags or on mattresses which were laid on carpeting on theground" (id. at 577-578). The Court concluded "that the structure satisfied thestatutory definition of a building either because it had been utilized for overnight lodgingor because it fit[ ] within the 'ordinary meaning' of the term" (id. at 579).
Inasmuch as the trailer herein was "a constructed edifice enclosed by walls, coveredby a roof, designed to stand permanently, and serving a useful purpose, it is includedwithin the ordinary meaning of the word 'building' " (People v Fennell, 122AD2d 69, 70-71 [1986], lv denied 68 NY2d 1000 [1986]). Indeed, the structure'swalls and roof were much more "permanent" than the carpets, shower curtains and tarpused to create the shanty deemed a building in Fox. In addition to furnishings forsleeping, the trailer had a bathroom and a kitchen. Moreover, the trailer was equippedwith a power cord for immediate access to power and a propane tank that could be usedto power the refrigerator and heaters. At the time of the arson, the trailer was being usedto secure the owners' property while they were remodeling the inside of their house. Inany event, with respect to the trailer's character as a building in the ordinary sense of theword, it is of no moment that no one was actually residing in the trailer on the day of theincident (see People v Richberg, 56 AD2d 279, 280-281 [1977]; see alsoFennell, 122 AD2d at 70-71).
Even assuming, arguendo, that the trailer did not fit within the ordinary meaning ofthe term, we conclude that it constituted a building under the secondary definition ofbuilding contained in the statute, i.e., a "structure . . . used for overnightlodging of persons, or used by persons for carrying on business therein" (Penal Law§ 150.00 [1]). Defendant recognized that the trailer was used for overnight lodging"on 'vacations' or weekend retreats," and it is undisputed that defendant had previouslyrented the trailer as overnight lodging for a period of four months. Although no one wasresiding in the trailer on the day of the fire, we likewise conclude that such fact does notalter the essential character of the structure as one used for overnight lodging.
Defendant contends that the phrase "used for overnight lodging" requires that thestructure be in current use for overnight lodging. Otherwise, defendant posits, the statutewould have set forth that a building is a structure that "could be" used for overnightlodging. In our view, it is defendant who is adding language to the statutory definition.The statute provides that a building is any structure used for overnight lodging; it doesnot provide that a building is any structure that is currently being used forovernight lodging. Inasmuch as defendant "used [the trailer] for overnight lodging" andrecognized that such trailers were used for overnight lodging on vacations and weekendretreats, we conclude that the trailer was a building under the secondary definitioncontained in the statute.
Defendant further contends that the verdict is against the weight of the evidencebecause, inter alia, the jury was swayed by improper factors. Viewing the evidence inlight of the elements of the crime as charged to the jury (see Danielson, 9 NY3dat 349), we conclude that the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, County Court did not err in refusing toquestion the jurors concerning whether they may have disobeyed the court's order toavoid reading newspaper articles about the case. "[T]rial courts [have] wide flexibility indetermining what, if any, steps are required to assure a defendant's right to a fair trial inlight of the particular [*3]midtrial publicity andcircumstances encountered, subject to appellate review for an abuse of discretion" (People v Shulman, 6 NY3d1, 32 [2005], cert denied 547 US 1043 [2006]). Here, we perceive no abuseof discretion. Indeed, we conclude that an inquiry by the court concerning a specificnewspaper article would have "inevitably focus[ed] the jurors' attention on somethingthat there was no indication any of them had seen, and might well [have] foster[ed]infelicitous speculation" (id. at 32).
Defendant failed to preserve for our review his contention that he was denied hisconstitutional right to present a defense inasmuch as he did not raise that contention inthe trial court (see People vLane, 7 NY3d 888, 889 [2006]; People v Baxter, 108 AD3d 1158, 1160 [2013]; People v Dorn, 71 AD3d1523, 1523 [2010]), and we decline to exercise our power to review that contentionas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Based on defendant's significant criminal history, we conclude that his sentence of25 years to life as a persistent felony offender is not unduly harsh or severe. We havereviewed defendant's remaining contentions and conclude that they lack merit.Present—Scudder, P.J., Centra, Peradotto, Lindley and Whalen, JJ.