People v. Anderson

• Decision Date: 03 April 1981
• Citation: 437 N.Y.S.2d 985,80 A.D.2d 33
• Parties: PEOPLE of the State of New York, Respondent, v. Robert ANDERSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 985

437 N.Y.S.2d 985

80 A.D.2d 33

PEOPLE of the State of New York, Respondent, v. Robert ANDERSON, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 3, 1981.

John Schuppenhauer, Shortsville, for appellant.

James R. Harvey, Canandaigua, for respondent (R. Michael Tantillo, Canandaigua, of counsel).

Before CARDAMONE, J. P., and SIMONS, CALLAHAN, MOULE and SCHNEPP, JJ.

CALLAHAN, Justice:

Defendant appeals from a judgment entered following a jury verdict convicting him of arson in the third degree (Penal Law, § 150.10, subd. 1) as charged in the indictment. Defendant was accused of intentionally setting a fire which completely destroyed the Burroughs Audubon Nature Club during the early morning hours of September 29, 1978. The building, a two-story frame structure use as a clubhouse, unoccupied on the evening of the fire, was completely engulfed in flames when firemen arrived. Because the fire involved an unoccupied structure, and because of the time of day, the intensity of the burning, the amount of consumption of the building, the apparent rapid size and growth of the fire, fire officials requested a police investigation.

On November 17, 1978 defendant telephoned the State Police from a bar where he had been drinking and told them he wished to confess to setting a fire. In response, the State Police met defendant, and after he had been advised of his constitutional rights, defendant signed statements admitting setting fire to the Audubon Club. Defendant, frustrated and upset with a number of personal problems, including a recent break-up with his girlfriend, described starting the fire using a mixture of gasoline and oil which was poured on the building. At the scene of the fire defendant demonstrated for the police what occurred the night of the crime. Defendant testified at a pretrial Huntley hearing and repudiated his confessions, contending he was intoxicated and upset when they were taken.

On this appeal defendant contends, inter alia, that: the statements or confessions made by him should have been suppressed due to untimely and incomplete disclosure by the People and/or as involuntary; the trial court erred in not granting defendant's motion to dismiss at the close of the People's case due to the failure of the People to adduce sufficient proof in addition to his confession that a crime had been committed; and the trial court erred in its Sandoval ruling whereby the prosecution would have been permitted to question the defendant, had he elected to testify, regarding a prior act of arson to impeach his credibility.

Upon his arraignment, the People served defendant with a notice pursuant to CPL 710.30 specifying that they intended to offer evidence at trial of a written statement made by defendant to Sheriff's Department investigators, attaching a copy thereof. The People failed, however, to notify defendant that they also intended to offer evidence of oral and written statements given by the defendant to a State Police investigator. It was not until the Huntley hearing that defendant was apprised of any statements made to the State Police. Defense counsel's objection to such testimony was sustained by the court. The court properly rejected the district attorney's contention that the additional statements were merely cumulative and in substance identical to the prior noticed statements made by defendant to the Sheriff's investigators. The court's ruling, however, was without prejudice to the right of the district attorney to serve upon defense counsel an amended notice to include a copy of statements made to the State Police. The court adjourned the hearing on this issue in order to afford defendant and his attorney an opportunity to examine the statement and move against it. Upon completion of the hearing following the People's service of the amended 710.30 notice, the court denied defendant's motion to suppress, ruling that the statements were in all respects voluntarily made after defendant has been properly advised of his constitutional rights.

The trial court properly sustained defendant's objection to the receipt of testimony with reference to non-noticed statements made by the defendant to the investigator. It was also proper to permit the district attorney to serve an amended 710.30 notice. The purpose of the CPL 710.30 notice provision is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or admission (People v. Greer, 42 N.Y.2d 170, 391 N.Y.S.2d 613, 366 N.E.2d 273; People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557; People v. Harris, 25 N.Y.2d 175, 303 N.Y.S.2d 71, 250 N.E.2d 349, aff'd 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1). The statutory procedure permits an orderly hearing and determination of the relevant issues, thereby preventing the interruption of trial to challenge initially the admission of the statements into evidence (People v. Briggs, supra; cf. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179). The statute gives the trial court discretion to allow late notice "for good cause shown" provided the defendant is accorded "reasonable opportunity thereafter to make a suppression motion" (CPL 710.30, subd. 2; People v. Briggs, supra, p. 322, 379 N.Y.S.2d 779, 342 N.E.2d 557). Here, the defendant was afforded the opportunity to move to suppress the evidence, before trial. That motion was properly denied, thus rendering the evidence admissible (CPL 710.30, subd. 3; cf. People v. Jones, 69 A.D.2d 912, 415 N.Y.S.2d 124). Additionally, a review of the record supports the trial court's finding that defendant knowingly, intelligently and voluntarily waived his constitutional rights after he had been fully and completely advised of those rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Leonti, 18 N.Y.2d 384, 275 N.Y.S.2d 825, 222 N.E.2d 591, cert. den. 389 U.S. 1007, 88 S.Ct. 566, 19 L.Ed.2d 603).

Whether the People failed to prove a prima facie case is contingent upon the meaning ascribed to the rule set forth in CPL 60.50, which provides: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." While the wording of this statute (CPL 60.50), enacted in 1971, differs slightly from that of its predecessor (Code Crim. Pro., § 395), enacted in 1881, the Legislature manifested no intention of changing the meaning or requirements of the confession corroboration rule (see Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 60.50, p. 331; People v. Murray, 40 N.Y.2d 327, 329, 386 N.Y.S.2d 691, 353 N.E.2d 605, cert. den. 430 U.S. 948, 47 S.Ct. 1586, 51 L.Ed.2d 796). Its purpose is to obviate the "danger that a crime may be confessed when (in fact) no such crime in any degree has been committed by any one" (People v. Lytton, 257 N.Y. 310, 314, 178 N.E. 290; People v. Reade, 13 N.Y.2d 42, 45, 241 N.Y.S.2d 829, 191 N.E.2d 891).

The effect of the confession corroboration statute is to require proof of the corpus delicti. Generally, proof of the corpus delicti requires a showing (1) that a loss has occurred and (2) that the loss resulted from somebody's criminality (People v. Murray, supra, p. 331, 386 N.Y.S.2d 691, 353 N.E.2d 605). In an arson case, the corpus delicti consists of a burning which is wilful or, to borrow from the concept expressed in murder cases, a fire set by criminal or guilty human agency (People v. Reade, supra, p. 45, 241 N.Y.S.2d 829, 191 N.E.2d 891). The additional proof need not be direct evidence linking the defendant to the crime (People v. Murray, supra, p. 332, 386 N.Y.S.2d 691, 353 N.E.2d 605; People v. Brasch, 193 N.Y. 46, 59, 85 N.E. 809). It suffices to show corroborating circumstances "which, when considered in connection with the confession are sufficient to establish the defendant's guilt in the minds of the jury beyond a reasonable doubt" (People v. Murray, supra, p. 332, 386 N.Y.S.2d 691, 353 N.E.2d 605 quoting People v. Conroy, 287 N.Y. 201, 202, 38 N.E.2d 499). Moreover, it is not necessary that the proof exclude "every reasonable hypothesis save that of guilt" (People v. Cuozzo, 292 N.Y. 85, 92, 54 N.E.2d 20).

"In arson cases, proof of criminal agency is, of necessity, more often than not solely circumstantial because, in the very nature of things, the fire generally consumes and destroys all evidence of its incendiary origin." (People v. Reade, supra, p. 46, 241 N.Y.S.2d 829, 191 N.E.2d 891; People v. Piazza, 48 N.Y.2d 151, 158, 422 N.Y.S.2d 9, 397 N.E.2d 700.) "(W)hen, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a noncompliance with the requirement of the statute." (People v. Jaehne, 103 N.Y. 182, 199-200, 8 N.E. 374; People v. Murray, supra, p. 332, 386 N.Y.S.2d 691, 353 N.E.2d 605; People v. Reade, supra, p. 45, 241 N.Y.S.2d 829, 191 N.E.2d 891.) The record reveals that in addition to defendant's confession the People offered testimony from fired officials and others concerning the suspicious circumstances surrounding the nighttime fire at the unoccupied clubhouse, including the intensity of the burning, the amount of consumption of the building by fire, the rapid spread, size, growth of the fire, and the unlikely possibility of other causes. Furthermore, there was testimony from one of defendant's friends that defendant admitted to him he had set a fire and wanted to turn himself in to the police. This testimony constituted competent evidence from which the jury could have concluded that the fire was of incendiary origin, thus satisfying the...