| People v Launder |
| 2015 NY Slip Op 07865 [132 AD3d 1151] |
| October 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEric Launder, Appellant. |
Timothy S. Brennan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schenectady County(Milano, J.), rendered June 12, 2012, upon a verdict convicting defendant of the crimesof arson in the second degree, criminal mischief in the third degree (two counts) andcriminal mischief in the fourth degree.
Defendant was indicted for the crimes of arson in the second degree, criminalmischief in the third degree (two counts) and criminal mischief in the fourth degree forallegedly setting a fire to his neighbor's door and spray-painting several security camerasthroughout his apartment building in the City of Schenectady, Schenectady County.Following a jury trial defendant was convicted as charged and sentenced as a secondfelony offender to an aggregate prison term of 25 years with five years of postreleasesupervision. Defendant appeals.
Having made only a general motion to dismiss the arson charge, defendant failed topreserve his argument that the arson verdict was not supported by legally sufficientevidence (see People vHawkins, 11 NY3d 484, 492 [2008]). Nevertheless, we evaluate the adequacy ofthe evidence as to each element of the crimes for which he was convicted as part of ourweight of the evidence review (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Santiago, 118 AD3d1163, 1164 [2014], lv denied 24 NY3d 964 [2014]). Given that an acquittalwould not have been an unreasonable outcome, we must weigh "the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that maybe drawn from the [*2]testimony while viewing theevidence in a neutral light and giving deference to the jury's credibility assessments" (People v Gibson, 121 AD3d1416, 1418 [2014], lv denied 24 NY3d 1119 [2015] [internal quotationmarks and citation omitted]).
For defendant to be found guilty of arson in the second degree, the People wererequired to prove that he "intentionally damage[d] a building . . . by startinga fire . . . when . . . another person who [was] not a participantin the crime [was] present in such building" and he knew "that fact or the circumstances[were] such as to render the presence of such a person therein a reasonable possibility"(Penal Law § 150.15). The fire occurred during the early morning hours ofMay 28, 2011. Defendant, who resided in apartment 12 and actually called 911 to reportthe fire, maintains that the People failed to prove that he set the fire. As recounted in thetestimony of Wanda Norris, who resided in apartment 8, and her niece, Shatina McCall,the event was prompted by an exchange earlier that evening between defendant andMcCall. At defendant's request, McCall went to his apartment having agreed to perform asexual act for $20. While defendant was in the shower, McCall took $20 and left theapartment, without having engaged in any sexual activity. McCall and Norris then leftthe building. Upon their return, they were confronted by defendant in the hallway nearNorris' apartment. During the encounter, defendant threatened to retaliate. When McCalland Norris went inside the apartment, they heard banging on the door, with defendantstating that he would use lighter fluid to start a fire. Later that morning, McCall andNorris heard the crackling sound of fire at their door. They threw water on the fire andwere able to exit the apartment.
Another neighbor, Shirley Lindsey, who described defendant as a good friend,testified that he came to her apartment early in the morning of May 28, 2011. Shedescribed him as being angry with Norris and McCall over the $20. According toLindsey, before defendant left her apartment, he stated that "he ought to burn thosebitches up" and "set their house on fire." Defendant later returned to tell Lindsey that sheshould leave because the building was on fire, but that she needn't worry because "[i]t'sjust a little fire." Three days later, she saw defendant headed toward the back of thebuilding where the garbage cans were stored carrying a white plastic bag. That same day,defendant admitted to Lindsey that he put a hooded sweatshirt on to disguise himself andstarted the fire using lighter fluid. Defendant also admitted spray-painting all of thesurveillance cameras in the building.
Mark Meeks, a special agent with the United States Department of Justice, Bureau ofAlcohol, Tobacco, Firearms and Explosives who responded to the scene on May 28,2011, testified that he interviewed defendant in his apartment because defendant hadcalled 911 and helped evacuate others from the building. Notably, defendant gave awritten statement to Meeks in which he denied setting the fire, but acknowledged that heagreed to engage in a sexual act with McCall and that he later had an argument withNorris "about money and sex." Meeks also testified about the surveillance footage, whichwas shown to the jury. The footage implicated defendant as the individual wearing ahooded sweatshirt coming from and returning to apartment 12, who set the fire andspray-painted the camera near apartment 8. James Penn, an investigator from theSchenectady Fire Department who also responded to the fire scene on May 28, 2011,testified that the remaining cameras were spray-painted sometime after the fire was setand before he returned to the scene on June 1, 2011. Penn also testified that lighter fluidwas utilized as an accelerant for the fire and that a can of lighter fluid and spray paintwas found in a garbage can behind the building. The spray paint was in a white plasticbag, as described by Lindsey, and was the same silver color used to paint thecameras.
Defendant claims that McCall, Norris and Lindsey all lacked credibility for variousreasons. These allegations were presented to the jury, which clearly credited theirtestimony (see [*3]People v Nicholas, 130 AD3d 1314, 1315 [2015];People v Richards, 124AD3d 1146, 1147 [2015], lv denied 25 NY3d 992 [2015]; People v Wingo, 103 AD3d1036, 1037 [2013], lv denied 21 NY3d 1021 [2013]). Their testimony,coupled with the surveillance video, the physical evidence that an accelerant was utilizedand defendant's own admissions, provides abundant support for the jury's arson verdict,which is not contrary to the weight of the evidence.
As for the criminal mischief in the third degree convictions, we find the verdict bothlegally sufficient and supported by the weight of the trial evidence. A charge of criminalmischief in the third degree requires proof that a defendant intentionally damagedproperty with a value exceeding $250 (see Penal Law § 145.05 [2]).At issue here is the value of the damage to the doorway area of apartment 8 and thedamage to the security cameras spray-painted several days after the fire. Such damagesare typically "established by evidence of the reasonable cost of repairing the property or,if the property cannot be repaired, the replacement cost thereof" (People v Beauvais, 105 AD3d1081, 1083 [2013] [internal quotation marks and citation omitted]). Here, theproperty owners testified that the cost to repair the door was $350 and approximately$1,100 to replace the carpet. Photographs received into evidence reveal considerableburn damage to the door and carpeting. An employee for the company that installed theoriginal cameras testified that the cost to actually replace the camera lenses was justunder $700. Based on the foregoing, we find that the verdict for the criminal mischiefconvictions is supported by legally sufficient evidence and is in accord with the weightof the evidence (see People vMiranda, 119 AD3d 1421, 1422 [2014], lv denied 24 NY3d 1045[2014]).
Defendant's remaining contentions are unavailing. While defendant maintains thathis statement given to the police on May 28, 2011 should have been suppressed asinvoluntary, he raised no such challenge in his posthearing memorandum of law,focusing instead on the June 1, 2011 statements. That said, despite defendant's claim ofintoxication, Meeks testified that defendant was cooperative and did not exhibit anysigns of intoxication (see Peoplev Baugh, 101 AD3d 1359, 1360-1361 [2012], lv denied 21 NY3d 911[2013]; People v Scott, 47AD3d 1016, 1020 [2008], lv denied 10 NY3d 870 [2008]). County Courtfound Meeks credible and further determined that defendant was not in custody whenthis interview was conducted in his apartment. The record supports this determination.By failing to object to Lindsey's testimony, defendant's assertion that the statements hemade to her should be suppressed have not been preserved for our review (seeCPL 470.05 [2]; People vEdwards, 124 AD3d 988, 991 [2015], lv denied 25 NY3d 1201 [2015]).In any event, there is abundant evidence apart from defendant's admission that thecharged crimes had been committed (see CPL 60.50; People v Santiago, 22 NY3d740, 748-749 [2014]; People v Lipsky, 57 NY2d 560, 571 [1982]). In viewof defendant's admissions to Lindsey, which constitute direct evidence (see People vRosner, 67 NY2d 290, 295 [1986]), a circumstantial evidence charge wasunnecessary (see People v Daddona, 81 NY2d 990, 992 [1993]; People v McRobbie, 97 AD3d970, 972 [2012], lv denied 20 NY3d 934 [2012]; People v Wallace, 8 AD3d753, 756 [2004], lv denied 3 NY3d 682 [2004]). Since there was noplausible basis to exclude either defendant's May 28, 2011 statement, or his admission toLindsey, defendant's further claim of ineffective assistance of counsel based on counsel'sfailure to have this evidence excluded is without merit (see People v Caban, 5 NY3d143, 152 [2005]; People vClarke, 110 AD3d 1341, 1345 [2013], lv denied 22 NY3d 1197[2014]).
Finally, defendant's claim that the sentence was harsh and excessive is unpersuasive(see People v Strong, 27AD3d 1010, 1013 [2006], lv denied 7 NY3d 763 [2006]; People vBrown, 281 AD2d 700, 702 [2001], lv denied 96 NY2d 826 [2001]). Whilewe recognize that the sentence imposed was the maximum (see Penal Law§§ 70.06 [3] [b]; [4] [b]; [6] [a]; 70.15 [1]; 145.00, 145.05, 150.15),the record confirms that defendant engaged in a deliberate plan to set an interior fire toan apartment building with several occupants, endangering their lives. As such, [*4]we perceive no abuse of discretion or extraordinarycircumstances warranting a modification.
Garry, J.P., Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.