People v. Abare

• Decision Date: 21 July 2011
• Citation: 2011 N.Y. Slip Op. 05993,86 A.D.3d 803,927 N.Y.S.2d 233
• Parties: The PEOPLE of the State of New York, Respondent,v.Tina ABARE, Appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 803

927 N.Y.S.2d 233

2011 N.Y. Slip Op. 05993

The PEOPLE of the State of New York, Respondent,

v.Tina ABARE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 21, 2011.

Paul J. Connolly, Delmar, for appellant.Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.GARRY, J.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered February 16, 2010, upon a verdict convicting defendant of the crime of attempted arson in the second degree.

In June 2009, defendant's neighbor observed defendant squirt or throw a clear liquid onto the first-floor porch of an apartment building and then make motions as if striking matches before fleeing the scene. The neighbor went to warn the residents of the first-floor apartment about what she had witnessed. This neighbor and the police, who arrived shortly thereafter, observed that the porch was wet and found matches, an empty matchbook, and an empty bottle of lighter fluid on and near the porch. Defendant was arrested and indicted on one count of attempted arson in the second degree. She was convicted by jury verdict and sentenced to five years in prison with three years of postrelease supervision. Defendant appeals.

Initially, defendant contends that her conviction was against the weight of the evidence because she lacked any motive to commit arson, and because two trial witnesses—a resident of the first-floor apartment and the neighbor—were not credible. As a different finding by the jury would not have been unreasonable, “this Court ‘must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” ( People v. Shepherd, 83 A.D.3d 1298, 1298, 921 N.Y.S.2d 666 [2011], quoting People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). As relevant here, “[a] person is guilty of arson in the second degree when he [or she] intentionally damages a building ... by starting a fire, and when (a) another person who is not a participant in the crime is present in such building ... at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility” (Penal Law § 150.15). Further, “[a] person is guilty of an attempt ... when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00).

The first-floor resident testified that she and defendant had argued, and that the police had responded to two calls she had made earlier that day reporting defendant's conduct. This witness further testified that she had been on the porch approximately 20 minutes before the subject incident, it had appeared dry, and there was not a lighter fluid bottle or matches in the vicinity at that time. The neighbor testified that she observed defendant squirt or throw a clear liquid onto the first-floor resident's porch and then make motions with her hands as if she was striking matches. When police arrived, they recovered matches, an empty matchbook and an empty bottle of lighter fluid from the porch, observed that the porch was wet, and smelled lighter fluid. Defendant denied having any arguments with the first-floor resident or that she attempted to set fire to the porch. She described grilling food earlier in the day, attributing the presence of matches and lighter fluid on the porch to this activity. She admitted to drinking alcohol beginning in the early morning and continuing throughout the day. Defendant resided in the building at the time, and testified that she would not have tried to set a fire on the premises, as her belongings and her pets were in her apartment above. According great deference to the jury's credibility determinations ( see People v. King, 77 A.D.3d 1173, 1175, 910 N.Y.S.2d 238 [2010]; People v. Clairmont, 75 A.D.3d 920, 923, 906 N.Y.S.2d 369 [2010], lv. denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010] ), we find that there was ample evidence of defendant's motive, an issue considered although not an element of the crime ( see People v. Richardson, 55 A.D.3d 934, 937, 865 N.Y.S.2d 138 [2008], lv. dismissed 11 N.Y.3d 857, 872 N.Y.S.2d 80, 900 N.E.2d 563 [2008] ). Further, viewing all of the evidence in a neutral light, the verdict was supported by the weight of the evidence ( see People v. Cardenas, 79 A.D.3d 1258, 1261, 912 N.Y.S.2d 742 [2010], lv. denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ).

Defendant's assertion that she was denied a fair trial by improper and prejudicial questioning during cross-examination about her failure to proclaim to police that she was innocent prior to being arrested and a later reference during summation regarding her prearrest silence is, as she concedes, not preserved for our review. County Court's failure to give a curative instruction was error ( see People v. De George, 73 N.Y.2d 614, 618–619, 543 N.Y.S.2d 11, 541 N.E.2d 11 [1989]; People v. Conyers, 52 N.Y.2d 454, 458–459, 438 N.Y.S.2d 741, 420 N.E.2d 933 [1981]; People v. Murphy, 51 A.D.3d 1057, 1058, 856 N.Y.S.2d 713 [2008], lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ), but we decline to exercise our interest of justice jurisdiction, finding the error harmless in light of the overwhelming evidence of defendant's guilt ( see People v. Watson, 299 A.D.2d 735, 738, 753 N.Y.S.2d 530 [2002], lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003]; People v. Ryan, 240 A.D.2d 775, 777, 658 N.Y.S.2d 527 [1997], lv. denied 90 N.Y.2d 910, 663 N.Y.S.2d 522, 686 N.E.2d 234 [1997] ).

Next, defendant claims that she was deprived of a fair trial because County Court improperly admitted hearsay. The People asked the first-floor resident what the neighbor said to her on the day of the incident but also stated, prior to any response, that the question was asked only to explain what the resident did after speaking to the neighbor. Similarly, a police officer testified as to a statement by the resident's paramour reporting that the neighbor said that defendant attempted to set the porch on fire. In both instances, we find that County Court properly overruled defendant's objections, finding that the statements were not offered for their truth but, instead, to explain the actions taken by the resident and the officer thereafter ( see People v. Johnson, 79 A.D.3d 1264, 1266–1267, 911 N.Y.S.2d 713 [2010],...