| People v Fancher |
| 2014 NY Slip Op 02351 [116 AD3d 1084] |
| April 3, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CodyD. Fancher, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Lambert, J.), rendered June9, 2011 in Delaware County, upon a verdict convicting defendant of the crimes ofburglary in the second degree (two counts), burglary in the third degree (three counts),arson in the third degree (four counts), arson in the fourth degree, arson in the fifthdegree, attempted arson in the fifth degree, criminal mischief in the third degree (threecounts), reckless endangerment in the first degree, criminal trespass in the second degree,trespass and petit larceny.
Defendant and codefendant Donald J. Aitken were charged in a joint 21-countindictment with crimes stemming from their alleged involvement in multiple acts ofvandalism, theft, burglary and arson in Delaware County in 2009, culminating in thedestruction of a church by fire. Following a jury trial, defendant was convicted ofburglary in the second degree (two counts), burglary in the third degree (three counts),arson in the third degree (four counts), arson in the fourth degree, arson in the fifthdegree, attempted arson in the fifth degree, criminal mischief in the third degree (threecounts), reckless endangerment in the first degree, criminal trespass in the second degree,trespass and petit larceny.[FN1]Supreme Court sentenced defendant to [*2]an aggregateprison term of 23 to 69 years, which was later reduced pursuant to Penal Law §70.30 to an aggregate term of 12 to 20 years. The court further ordered defendant to payrestitution in the aggregate amount of $814,771.48. Defendant appeals.
Defendant first argues that Supreme Court erred in denying his trial motion todismiss the indictment count that charged him with arson in the second degree,contending that the evidence was legally insufficient to establish the requisite intent(see Penal Law § 150.15). However, following the denial of defendant'smotion, the jury acquitted defendant upon this charge, which was based on damage to afoster home caused by the fire in the nearby church. Defendant was instead convicted ofarson in the fourth degree as a lesser included offense, a charge that was given atdefendant's request and did not require a showing of the element of intent that he hadchallenged (see CPL 300.50 [2]; Penal Law § 150.05 [1]). Defendant doesnot challenge the sufficiency of the evidence supporting his conviction for arson in thefourth degree; instead, in effect, he asks this Court to reverse this conviction on theground that the evidence supporting the charge upon which he was acquitted was legallyinsufficient. Even if this argument had any merit, defendant waived it by requesting thelesser charge; he "ought not be allowed to take the benefit of the favorable charge andcomplain about it on appeal" (People v Shaffer, 66 NY2d 663, 665 [1985][internal quotation marks and citation omitted]; compare People v McDuffie, 46 AD3d 1385, 1386 [2007],lv denied 10 NY3d 867 [2008]).
Defendant next challenges the legal sufficiency of the evidence establishing that heacted as Aitken's accomplice, and further contends, on this basis, that the verdict iscontrary to the weight of the evidence.[FN2]Although defendant's legal sufficiency claims on this ground are unpreserved, wenecessarily evaluate whether the evidence supports each element of the crimes in thecourse of reviewing the contention that the verdict is contrary to the weight of theevidence (see People vTownsend, 94 AD3d 1330, 1330 n 1 [2012], lv denied 19 NY3d 1105[2012]). A defendant may be held criminally liable for the conduct of another person"when, acting with the mental culpability required for the commission thereof, [thedefendant] solicits, requests, commands, importunes, or intentionally aids such person toengage in such conduct" (Penal Law § 20.00). The factfinder may infer mentalculpability from the surrounding circumstances and the defendant's actions (see People v Bush, 75 AD3d917, 918 [2010], lv denied 15 NY3d 919 [2010]; People vValderrama, 285 AD2d 902, 903 [2001], lv denied 97 NY2d 659 [2001]).Defendant contends that the evidence reveals that Aitken, a volunteer firefighter whotestified that he got "an adrenaline rush" from starting fires, was the ringleader whoplanned and committed the various crimes, while defendant was a passive follower whothought of Aitken as a big brother and—although he was present at the firescenes—neither took any actions to help Aitken set them nor shared in a"community of purpose" (People v Cabey, 85 NY2d 417, 421 [1995] [internalquotation marks and citation omitted]; see Penal Law § 20.00).
Defendant claimed primary responsibility for several of the arsons in an earlystatement [*3]to police, but then recanted theseadmissions and testified at trial that he made them falsely in an attempt to protect Aitken.He further testified that Aitken planned and carried out the various arsons, and thatdefendant did not know beforehand about Aitken's plans and did not help him set thefires. However, he also acknowledged that, even after Aitken set fire to the first structure,defendant continued to accompany him into additional structures that Aitken broke intoand burned, without refusing to join him or reporting the crimes to the police. Defendanttestified that, on the night that the church was burned, he argued with Aitken to dissuadehim from an alleged plan to burn down the house of an ex-girlfriend. When Aitken thenannounced that he would burn the church instead, defendant expressed reservations onreligious grounds but nevertheless accompanied Aitken as he broke into the church andset fire to it, without further objection. Notably, defendant's testimony that he did notbelieve he could have stopped Aitken from setting fires if he had tried to do so wasinconsistent with his testimony that he did, in fact, successfully object to Aitken's planwith regard to the ex-girlfriend's home. Finally, defendant testified that he threw awaygas cans that were used in burning the church because he did not want to get caught withthem; he later showed police where these cans were hidden.
Aitken contradicted defendant's testimony as to his principal role in the arsons,testifying that it was defendant who proposed, planned and committed each of thecrimes—which occurred in April, June, September and October2009—while Aitken was the passive follower. The jury plainly did not credit all ofthis self-serving testimony, as it acquitted defendant of everything but trespass charges inrelation to the April and June arsons despite his acknowledged presence at both scenesand Aitken's claims that defendant committed them.[FN3]Nevertheless, a jury is entitled to accept the testimony of a witness in part while rejectingthe rest (see People v Alteri,49 AD3d 918, 920 [2008]). Here, the jury could have credited Aitken's testimony, atleast in part, regarding defendant's participation in the subsequentcrimes—consisting of serial acts of vandalism and arson at three gravel banks andtwo residences on a single night in September, followed in October by the arson of thechurch and a barn—and refused to credit defendant's claims of continuedignorance and uninvolvement. We find that the totality of the evidence, viewed in aneutral light, supports the conclusion "that the crimes of which defendant was convictedrepresented the culmination of a continuum of events in which he continued toparticipate after the intentions of [Aitken] became manifest, so as to justify the jury'sconclusion that he shared [Aitken's] criminal intent and aided in commission of thecrimes" (People v McDonald, 257 AD2d 695, 696-697 [1999], lv denied93 NY2d 876 [1999] [internal quotation marks and citation omitted]; see People vAllah, 71 NY2d 830, 832 [1988]; People v Gage, 259 AD2d 837, 839[1999], lv denied 93 NY2d 924 [1999], lv denied on reconsideration 93NY2d 970 [1999]).
Next, we reject defendant's contention that the verdicts convicting him of recklessendangerment in the first degree with respect to the persons in the foster home and arsonin the third degree with respect to the fire in the church are repugnant. Such a claimrequires this Court to examine the elements of each crime as they were charged to thejury to determine whether the defendant was "convicted of an offense containing anessential element that the jury has found the defendant did not commit" (People v Faccio, 33 AD3d1041, 1043 [2006], lv denied 8 NY3d 845 [2007] [internal quotation marksand citations omitted]; seePeople v Muhammad, 17 NY3d 532, 539 [2011]). The jury was instructed thatdefendant could be convicted of reckless [*4]endangerment in the first degree if it found that he"recklessly engaged in conduct which created a grave risk of death to another person andthat defendant did so under circumstances evincing a depraved indifference to humanlife," and was further instructed to find defendant guilty of arson in the third degree if itfound that he "damaged a building . . . by starting a fire . . .and that defendant did so intentionally." The resulting guilty verdicts are not repugnant,as "[t]here is 'nothing inconsistent about one acting with an intent to cause propertydamage while at the same time evidencing a conscious disregard for the risk of deathcreated by those same actions' " (People v Hodges, 66 AD3d 1228, 1232 [2009], lvdenied 13 NY3d 939 [2010], quoting People v McGrath, 195 AD2d 831,833 [1993], lv denied 82 NY2d 851 [1993]).
Defendant next contends that two of his convictions for criminal mischief in the thirddegree were not supported by legally sufficient evidence. The first of these contentionswas not preserved, but if it had been, we would have found that an auto body shopowner's estimate of the cost of repairing a vandalized pickup truck provided legallysufficient evidence that the damage exceeded $250, even though the repairs were neverperformed (see Penal Law § 145.05 [2]; People v Agron, 106 AD3d1126, 1128 [2013], lv denied 21 NY3d 1013 [2013]). We do find merit,however, in defendant's properly preserved challenge to his criminal mischief convictionunder count 7 of the indictment, involving damage to a pay loader. Supreme Courtrefused to permit a witness who represented the company that owned the loader to testify,as his name had not been included on the People's witness list and jurors had not beenasked about their acquaintance with him. As a result, the People offered no testimony asto the value of the damage to the loader, and the photographs they submitted, withoutmore, were legally insufficient to establish that this value exceeded $250 (see People v Beauvais, 105AD3d 1081, 1083 [2013]; People v Civitello, 287 AD2d 784, 786-787[2001], lv denied 97 NY2d 703 [2002]). Further, the record is devoid of proof asto the loader's ownership. Thus, this conviction must be reversed (compare People v Hooks, 71AD3d 1184, 1185-1186 [2010]).
Defendant also raises several challenges to the order of restitution. Even if defendanthad preserved the first of these contentions, we would have found no merit whatsoever inhis claim that Supreme Court should not have calculated the amount of the 5%designated surcharge at sentencing, but should have deferred this calculation until therestitution was "actually collected" (Penal Law § 60.27 [8]; see People v Secore, 102AD3d 1057, 1059 [2013], lv denied 21 NY3d 1019 [2013]). We agree withdefendant, however, that the amount of restitution payable to Delaware County fordamage to the foster home should not have been included in calculating the surcharge, asPenal Law § 60.27 (10) provides that restitution to a municipality "shall notinclude a designated surcharge." Accordingly, the amount of the surcharge must berecalculated to exclude this amount as well as the amount based upon the reversedconviction for criminal mischief in the third degree—resulting, according to therestitution amounts specified in the record, in a 5% surcharge of $38,026.44.
Finally, defendant challenges the total amount of restitution, contending that it isharsh and excessive. Penal Law § 60.27 (5) (a) limits the amount of restitution thatmay ordinarily be ordered to $15,000 for a felony and $10,000 for offenses other thanfelonies, but also permits a sentencing court to impose additional amounts in itsdiscretion, so long as "the amount in excess [is] limited to the return of the victim'sproperty, including money, or the equivalent value thereof" (Penal Law § 60.27 [5][b]). Here, Supreme Court imposed additional amounts for several of defendant's felonyconvictions, including $721,701.57 for the convictions related to the destruction of thechurch. All of these amounts complied with the statutory requirements in that theyrepresented monetary losses that were actually suffered by the victims and/or theirinsurers. [*5]Nevertheless, defendant contends that therestitution is excessive because its magnitude is so great that it bears no realisticrelationship to any amount that defendant—who was 17 years old at the time of thecrimes, had a 9th grade education, had no job skills beyond farm labor and will beincarcerated for 12 to 20 years—is ever likely to be able to pay. While thisargument has some persuasive force, it was not necessary to consider defendant's abilityto pay at the time of sentencing, as the sentence imposed includes a significant period ofincarceration (see Penal Law § 60.27 [1]; People v Orminski, 108 AD3d864, 866 [2013], lv denied 22 NY3d 958 [2013]; People v Heier, 73 AD3d1392, 1393 [2010], lv denied 15 NY3d 805 [2010]; People v Henry, 64 AD3d804, 807 [2009], lv denied 13 NY3d 860 [2009]). We find no reason todisturb Supreme Court's discretionary restitution determination, noting that defendantmay apply at any time for resentencing upon the ground that he is unable to pay(see CPL 420.10 [5]; People v Henry, 64 AD3d at 807).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's conviction of criminal mischief in thethird degree under count 7 of the indictment and by vacating so much thereof as directeddefendant to pay a 5% surcharge on restitution to Delaware County; said count dismissedand the sentence and restitution imposed thereon vacated, with the surcharge reduced asprovided herein; and, as so modified, affirmed.
Footnote 1: Aitken pleaded guilty toseven counts of arson in the third degree pursuant to a cooperation agreement with thePeople and testified against defendant at trial; his conviction was upheld upon appeal (People v Aitken, 101 AD3d1383 [2012], lv denied 21 NY3d 1040 [2013]).
Footnote 2: Defendant did notspecifically limit this challenge to his arson and burglary convictions, but his appellatecontentions are primarily directed to the evidence related to these crimes.
Footnote 3: As revealed uponcross-examination, substantial aspects of Aitken's testimony were inconsistent with hisprevious sworn statements during his plea allocution.