| People v Rice |
| 2018 NY Slip Op 04397 [162 AD3d 1244] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Sean T. Rice, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Mott, J.), rendered February 24,2016 in Greene County, convicting defendant following a nonjury trial of the crimes of arson inthe fourth degree and reckless endangerment in the second degree.
In May 2014, defendant was charged in a 32-count indictment with offenses arising from afire that he lit in his cell while housed as an inmate in Coxsackie Correctional Facility. All buttwo of the counts were dismissed as multiplicitous, and defendant went to trial solely on chargesof arson in the second degree and reckless endangerment in the first degree. Following a nonjurytrial, he was ultimately convicted of the lesser included offenses of arson in the fourth degree andreckless endangerment in the second degree. Defendant was sentenced, as a second felonyoffender, to a prison term of 1
Initially, defendant failed to preserve for our review his contention that his conviction ofarson in the fourth degree is not supported by legally sufficient evidence demonstrating damages,"as defense counsel's motion for a trial order of dismissal was not 'specifically directed at thealleged error' " (People vGreen, 141 AD3d 1036, 1037 [2016], lv denied 28 NY3d 1072 [2016], quotingPeople v Gray, 86 NY2d 10, 19 [1995]). Nevertheless, as defendant also contends that theverdict is against the weight of the evidence, we must evaluate "whether all elements of the [*2]charged crime[ ] were proven beyond a reasonable doubt at trial"(People v Agron, 106 AD3d1126, 1127-1128 [2013] [internal quotation marks, brackets and citation omitted], lvdenied 21 NY3d 1013 [2013]; seePeople v Coleman, 144 AD3d 1197, 1198 [2016]). Where, as here, a different verdictwould not have been unreasonable, our weight of the evidence review requires this Court to"weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; accord People v Robinson, 156 AD3d1123, 1125 [2017], lv denied 30 NY3d 1119 [2018]; see People v Olsen, 124 AD3d1084, 1085-1086 [2015], lv denied 26 NY3d 933 [2015]).
As pertinent here, "[a] person is guilty of arson in the fourth degree when he [or she]recklessly damages a building or motor vehicle by intentionally starting a fire or causing anexplosion" (Penal Law § 150.05 [1]). In this regard, "[t]he slightest damage to abuilding caused by a fire which is intentionally set is sufficient to establish the damage elementof this crime" (People v Fleming, 164 AD2d 942, 943 [1990], lv denied 76 NY2d1021 [1990]; see People v McDonald, 68 NY2d 1, 13-14 [1986]). As defendant'schallenge to the weight of the evidence is limited to the element of damages, our review thusdistills to that issue alone.
It is undisputed that, on the night in question, defendant intentionally set fire to clothing andother personal items in his cell. As a result of the smoke created by the burning of defendant'sbelongings and his fire-proof mattress, all of the inmates located in defendant's housing unit andthe unit on the floor above had to be evacuated shortly after midnight, and they were unable toreturn to their cells for an extended period of time. Five correction officers who responded to theincident consistently testified—and defendant acknowledged—that the fire createdthick smoke that made it hard to breathe and required many officers to crawl on their hands andknees in responding to the incident; defendant testified that he had to lie on the floor of his cell toaccess a small opening at the bottom of his door in order to breathe cleaner air. Defendantcontends that damages were limited to his personal items or furniture. In contrast, four correctionofficers each testified to seeing a blackening of defendant's cell wall above where the fire hadbeen set. Significantly, an expert in arson investigations who responded to the incident testifiedthat he had discovered areas of defendant's cell wall where paint had boiled off, as well as signsof "spalling," which he described as the "concrete actually coming apart" and, thus, "creating acrater or a divot in the wall" as a result of the heat of the fire. Viewing this evidence in a neutrallight and giving deference to the underlying credibility assessments, as we must, we cannot saythat the verdict is against the weight of the evidence (see People v Narimanbekov, 258AD2d 417, 417-418 [1999]; People v Calderon, 256 AD2d 122, 122 [1998], lvdenied 93 NY2d 851 [1999]; see also People v Jackson, 265 AD2d 343, 343 [1999],lv denied 94 NY2d 824 [1999]). Upon this record, we further find no merit in defendant'scontention that he was entitled to the defense of justification on the basis that he allegedly startedthe fire to create smoke in an effort to seek redress for his broken cell toilet, as "there [was] areasonable, legal alternative course of action" (People v Craig, 78 NY2d 616, 623 [1991];see Penal Law § 35.05 [2]).
Defendant next asserts that he was improperly sentenced as a second felony offender withouta hearing. We disagree. Where, as here, "it appears that a defendant who stands convicted of afelony has previously been convicted of a predicate felony and may be a second felony offenderas defined in [Penal Law § 70.06]," a hearing is required "[w]here the defendantcontroverts an allegation in the [predicate felony] statement and the uncontroverted allegations insuch statement are not sufficient to support a finding that the defendant has been subjected tosuch a predicate felony conviction" (CPL 400.21 [1], [5]). In this regard, defendant's instantconviction of arson in the fourth degree is a class E felony (see Penal Law§ 150.05). The People [*3]properly filed theappropriate predicate felony statement pursuant to CPL 400.21 (2), indicating that defendant hadpreviously been convicted in 2008 of burglary in the third degree, a class D felony, and ofattempted burglary in the third degree, a class E felony, and in 2012 of criminal sexual act in thefirst degree, a class B violent felony (see Penal Law §§ 70.20 [1] [a];110.00, 130.50, 140.20). Although defendant argued at sentencing that his prior convictions wereunconstitutional, he failed to meet his burden "to allege and prove the facts underlying [his]claim[s]" and, thus, to demonstrate his entitlement to a hearing (People v Harris, 61NY2d 9, 15 [1983]; see People vWeiss, 99 AD3d 1035, 1039 [2012], lv denied 20 NY3d 1015 [2013]). Defensecounsel further indicated that none of these prior convictions had been overturned or were thesubjects of pending appeals (see People v Ross, 138 AD2d 543, 543 [1988]).Accordingly, Supreme Court properly sentenced defendant as a second felony offender without ahearing (see CPL 400.21; People v Weiss, 99 AD3d at 1039).
Finally, we find no merit in defendant's contention that his counsel's failure to provide timelynotice of his intention to assert a psychiatric defense constituted ineffective assistance(see CPL 250.10). As pertinent here, "a simple disagreement with strategies [or] tactics. . . , weighed long after the trial, does not suffice" for a defendant to prevail on anineffective assistance of counsel claim (People v Flores, 84 NY2d 184, 187 [1994];accord People v Benevento, 91 NY2d 708, 713 [1998]). In this regard, immediatelyfollowing Supreme Court's discussion with defense counsel regarding the lack of notice of anypsychiatric defense, defendant expressly stated that he did not want to assert such a defense andrepeated this position again later in the trial. We note that defendant's request that the courtnevertheless receive his mental health records was, in fact, addressed by his counsel when theserecords were admitted into evidence by stipulation at his counsel's behest. "[V]iewed in totalityand as of the time of the representation," defendant received meaningful representation, as hiscounsel made appropriate pretrial motions, actively cross-examined witnesses, obtained areduction in the counts against defendant, and successfully requested that lesser includedoffenses be considered (People v Baldi, 54 NY2d 137, 147 [1981]; accord People v Garrow, 147 AD3d1160, 1162 [2017]; see People vZayas-Torres, 143 AD3d 1176, 1179-1180 [2016], lv denied 30 NY3d 984[2017]).
Defendant's remaining contentions, including those in his pro se supplemental brief, havebeen reviewed and found to be without merit.
Lynch, Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.