| People v Howard |
| 2015 NY Slip Op 08870 [134 AD3d 1153] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Travis Howard, Appellant. |
M. Elizabeth Coreno, Saratoga Springs, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered February 15, 2013, upon a verdict convicting defendant of the crimes ofarson in the third degree and insurance fraud in the second degree.
Defendant was charged with arson in the third degree and insurance fraud in thesecond degree arising from allegations that he intentionally set fire to his house in theTown of West Chazy, Clinton County and tried to obtain the insurance proceeds.Following a jury trial, he was convicted as charged. County Court denied defendant'smotion to set aside the verdict, sentenced him to concurrent prison terms of 3 to 9 yearson each count, and ordered him to pay $150,667.06 in restitution. Defendantappeals.
Initially, we find no error in County Court's decision to admit the testimony ofdefendant's wife that defendant had said that he was going to burn the house down. Theprivilege that precludes a spouse from disclosing a confidential communication madeduring marriage by the other spouse (see CPLR 4502 [b]; CPL 60.10) does notprotect every remark between spouses during a marriage. Instead, "the privilege attachesonly to those statements made in confidence and 'that are induced by the marital relationand prompted by the affection, confidence and loyalty engendered by suchrelationship' " (People v Fediuk, 66 NY2d 881, 883 [1985], quotingMatter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]). Thewife testified that her marriage to defendant began to deteriorate during the monthsbefore the fire, in part because defendant wanted to relocate to Colorado while the wifewanted to remain in New York and continue living in the marital home with her children.She stated that, as the relationship [*2]worsened,defendant told her "many" times that he would burn the house down to prevent her fromtaking possession of it when they separated.
The privilege "was never designed to forbid inquiry into the personal wrongscommitted by one spouse against the other" and, thus, does not apply here, as defendant'sstatements were not prompted by trust or confidence in the marital relationship, but,instead, constituted threats of criminal activity directed at the wife (Poppe vPoppe, 3 NY2d 312, 315 [1957]; see People v Govan, 268 AD2d 689, 691[2000], lv denied 94 NY2d 920 [2000]; People v Capobianco, 218 AD2d707, 707 [1995], lv denied 86 NY2d 841 [1995]; People v Naylor, 120AD2d 940, 940 [1986], lv denied 69 NY2d 714 [1986]). Further, the privilegedoes not apply "when the substance of a communication . . . is revealed tothird parties" (Matter of Vanderbilt [Rosner—Hickey], 57 NY2d at 74).Here, the wife testified that several of defendant's threats were made in the presence ofother people, including mutual friends and the couple's children, and these statementswere not privileged (see People v Ressler, 17 NY2d 174, 179 [1966]; JeromePrince, Richardson on Evidence § 5-406 [Farrell 11th ed 2008]).
Contrary to defendant's arguments, County Court did not improperly admit hearsaytestimony by permitting an insurance investigator to testify about interviews heconducted while investigating the fire. The investigator testified that, following hisinvestigation, he concluded that the fire was caused by human action and that thisopinion was based, in part, upon his communications with an independent electricalconsultant who assisted him in the investigation, and also with one of the wife's children.Although neither of these individuals testified at trial, the professional reliabilityexception to the hearsay rule permits an expert witness to rely upon out-of-courtinformation that would otherwise be inadmissible "if it is of a kind accepted in theprofession as reliable in forming a professional opinion" (People v Goldstein, 6 NY3d119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotationmarks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d95, 107 [2013]). "[A] prerequisite to admission of such out-of-court material is ashowing by the proponent that it is reliable as a basis for expert opinion in the givenfield" (People v Wlasiuk, 32AD3d 674, 680-681 [2006], lv dismissed 7 NY3d 871 [2006]). Here, thePeople laid the necessary foundation for allowing introduction of the informationobtained from the consultant through the testimony of the investigator, who described theconsultant's qualifications as a retired master electrician who had assisted the investigatorin many prior fire investigations, had likewise assisted other companies and investigatorsand had previously been qualified as an expert in state and federal court. Defendant wasfree to cross-examine the investigator and, thus, was not deprived of the opportunity forcross-examination relative to the consultant's credentials.
As for the substance of the information obtained from the consultant, the investigatortestified that his initial investigation revealed that the fire had originated inside anupstairs bedroom belonging to one of the children and that, after ruling out otherpotential sources of the fire, the investigator identified a damaged electric receptacle inthe wall of this bedroom. The investigator then contacted the electrical consultant and thetwo of them inspected the receptacle together. The investigator thereafter concluded thatthe damage in the receptacle had been caused by the fire and did not result from anelectrical defect or failure that could have been the original source of the fire. Thistestimony did not provide an improper "conduit for hearsay" (People v Goldstein,6 NY3d at 126 [internal quotation marks and citation omitted]), as the investigator didnot testify as to the substance of any statements made by the consultant. Moreover, theinvestigator's testimony established that his opinions regarding the origin of the fire werenot principally or solely based upon the consultant's examination, but also upon his ownobservations and research. The information acquired from the consultant therefore "onlyform[ed] a link in the chain of data" upon which the investigator's opinion was based(People v [*3]Wlasiuk, 32 AD3d at 681; seePeople v Mana, 292 AD2d 863, 863 [2002], lv denied 98 NY2d 678[2002]).
As to the interview with the child, the investigator stated that, in response toquestioning as to any potential cause of the fire, defendant advised that he had altered thewiring in a charging unit belonging to the child, and that this charger had been pluggedinto the damaged receptacle in the child's bedroom at the time of the fire. The alteredcharger was later given to the investigator, and he testified that it had no fire damage ofany kind and, therefore, could not have been located in the child's heavily damagedbedroom, nor could it have caused the fire. Based upon an interview with the childtogether with examination of the fire scene and the evidence he recovered, theinvestigator further concluded that nothing was plugged into the damaged receptacle atthe time of the fire. The investigator testified that interviews with a home's occupantswere part of his methods of investigation, thus providing the requisite foundation for hisreference to the interview. As with the electrical consultant, the investigator based hisconclusions only in part on the interview, and he did not describe the substance of theinterview or any statements made by the child. Accordingly, County Court properlyoverruled defendant's objection to this testimony.
We reject defendant's claim that the verdict was against the weight of the evidencebecause the People neither proved that the fire was not an accident nor that defendantintended to commit arson or insurance fraud. The investigator testified that he ruled outall potential nonhuman causes of the fire, such as the house's wiring, appliances andwoodstove, and ultimately concluded that the fire had been caused by human action.Defendant contends that this opinion was inadequate as the investigator was unable todetermine precisely how the fire had been ignited, and further acknowledged that thehuman actions that started it could have been accidental. However, the role of theinvestigator was merely to determine the cause of the fire, not to identify the person whocaused it or that person's motivation. The People were not required to prove the precisemechanism by which the fire was caused, and they presented ample evidence from whichthe jury could conclude that defendant intentionally started the fire. In addition to thepreviously-described statements to his wife, defendant told several other witnesses thathe planned to move to Colorado and to burn down the house to prevent the wife fromkeeping it. One witness testified that, after describing these plans, defendant said that"you can't split a pile of ashes." Another witness testified that she heard defendant saythat he would "burn the house down before [the wife] gets it," and two additionalwitnesses testified that they heard defendant make similar statements. One of thesewitnesses further testified that defendant had asked the witness questions about theflammability of grease and whether it would be possible to start a house fire by heatingcooking oil. As to motive, the wife testified that defendant had made several commentsto the effect that if the house burned down, the insurance proceeds would providefinancing for his planned move to Colorado.
There was also evidence suggesting that defendant had made a previous attempt toset fire to the house. Two days before the fire, the wife noticed that defendant hadpurchased vegetable oil, which was unusual as he did not ordinarily cook or shop forgroceries. Later that day, she found him cleaning up a large amount of oil that had spilledall over the kitchen; a deep fryer was on the counter beside the stove. When she askedwhat he was doing, defendant replied, "Well, never mind, it didn't work anyway." Theinsurance investigator corroborated this account in part, stating that he found a largeamount of grease or oil on several surfaces in the kitchen, but that the forensic evidencerevealed that this substance had not caused the fire.
On the day before the fire, defendant told the wife that he no longer wished to fight,was [*4]willing to sell the house and divide the proceeds,and was moving out that day. He removed some of his clothing, left the house and spentthat night with a friend. During his absence, the wife searched the Internet history on thefamily computer and discovered that defendant had made numerous searches regardinghouse fires, including searches for common causes of household fires, grease fires andkitchen fires. Police later conducted a forensic examination of the computer that revealedmultiple searches on defendant's account during the weeks before the fire for subjectssuch as the causes of house fires, grease fires and "untraceable fire starters"; a report ofthis examination was admitted into evidence at trial. At trial, defendant claimed thatsomeone else could have accessed his account, but acknowledged that he had conductedsome of the searches. A police investigator testified that when questioned as to why hehad searched for the causes of household fires, defendant responded that he "searche[d] alot of dumb things."
Defendant testified that he spent the morning of the fire repairing a flat tire on hiscar, that he visited the house briefly in the early morning, that his wife had already leftfor work, and that only his young son and defendant's mother, who was getting the sonready for school, were present. He stated that the house was not on fire when he left andthat he did not start the fire. Viewing the evidence in a neutral light and giving theappropriate deference to the jury's credibility determinations, we find that there wasample evidence from which the jury could have found that defendant intentionally set thefire, and, thus, the verdict on the arson conviction was not against the weight of theevidence (see People vStevens, 84 AD3d 1424, 1426 [2011], lv denied 17 NY3d 822 [2011];see also People v Nesbitt,69 AD3d 1109, 1112 [2010], lv denied 14 NY3d 843 [2010]). Additionally,based on the evidence that defendant concealed the cause of the fire when he submittedan insurance claim for his share of the policy proceeds (see People v Abraham, 94AD3d 1332, 1333 [2012], affd 22 NY3d 140 [2013]), the verdict on theinsurance fraud conviction was not against the weight of the evidence.
County Court did not err in denying defendant's motion to set aside the verdictpursuant to CPL 330.30 (1). Although defendant moved for a trial order of dismissal atthe close of the People's case, he failed to renew the motion at the close of his proof;thus, his legal sufficiency claims were unpreserved (see People v Lane, 7 NY3d 888, 889 [2006]; People v Valverde, 122 AD3d1074, 1075 [2014]). An unpreserved challenge to the legal sufficiency of theevidence does not "require reversal as a matter of law and, therefore, is not a proper basisfor CPL 330.30 (1) relief, which was properly denied" (People v Simmons, 111 AD3d975, 977 [2013], lv denied 22 NY3d 1203 [2014] [citation omitted]).
Finally, defendant asserts that the sentence imposed by County Court was harsh andexcessive as he had no adult criminal history before the current convictions and nofatalities or injuries resulted from the fire. However, the record reveals that defendant'scrimes had devastating emotional and economic effects upon the lives of his wife andfamily. In view of the seriousness of his crime and his failure to express remorse or takeresponsibility for the consequences of his actions, we find no abuse of discretion orextraordinary circumstances warranting a reduction (see CPL 470.15 [6] [b]; People v Alnutt, 101 AD3d1461, 1466 [2012], lv denied 21 NY3d 941 [2013], cert denied 571US &mdash, 134 S Ct 1035 [2014]; People v Mangan, 258 AD2d 819, 822[1999], lv denied 93 NY2d 927 [1999]).
Peters, P.J., Lahtinen and Clark, JJ., concur. Ordered that the judgment isaffirmed.