People v. Flemming

• Decision Date: 27 December 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Sherry L. FLEMMING, Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1483

956 N.Y.S.2d 678

2012 N.Y. Slip Op. 09103

The PEOPLE of the State of New York, Respondent,

v.Sherry L. FLEMMING, Appellant.

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

Dec. 27, 2012.

Scott N. Fierro, Public Defender, Elmira (Samuel D. Castellino of counsel), for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.

Before: PETERS, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered May 5, 2011, upon a verdict convicting defendant of the crimes of arson in the third degree (three counts) and attempted arson in the third degree.

In June 2010, defendant confessed to setting—over the course of a one-year period—a string of fires in her neighborhood in the Town of Southport, Chemung County, including an incident where she set fire to her husband's pickup truck. As a result, defendant was charged in two indictments with various counts of arson. Following a jury trial, defendant was convicted of three counts of arson in the third degree and one count of attempted arson in the third degree.¹ Defendant subsequently was sentenced to an aggregate prison term of 4 to 12 years and ordered to pay restitution. Defendant now appeals contending, among other things, that the verdict is against the weight of the evidence.

We affirm. Initially, we reject defendant's assertion that County Court erred in denying her motion to suppress her written statement. “Whether a statement is voluntary is a factual question to be determined from the totality of the circumstances” ( People v. Heesh, 94 A.D.3d 1159, 1160, 941 N.Y.S.2d 767 [2012] [citations omitted], lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012];see People v. Button, 56 A.D.3d 1043, 1044, 867 N.Y.S.2d 768 [2008],lv. dismissed12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009] ), and the suppression court's credibility determinations, if supported by the record as a whole, will not be disturbed ( see People v. Button, 56 A.D.3d at 1044, 867 N.Y.S.2d 768;People v. Davis, 18 A.D.3d 1016, 1017, 795 N.Y.S.2d 785 [2005],lv. denied5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005] ).

Here, Nicholas DeMuth, one of the investigators assigned to the case, testified at the Huntley hearing that defendant voluntarily accompanied him to the Chemung County Sheriff's Department in June 2010 to discuss a May 20, 2010 fire involving her husband's truck. Upon arrival, defendant was advised of her Miranda warnings and, after executing a written waiver thereof, elected to proceed with questioning. After being advised that her account of the subject fire was inconsistent with certain forensic evidence, defendant admitted her involvement in each of the seven fires charged in the indictments. At this point, DeMuth provided defendant with photos of the various fires, upon which she placed certain notations and her initials. Defendantthen provided a written statement, which she subsequently reviewed and signed. DeMuth testified that at no point during the approximately five hours of questioning was defendant handcuffed, restrained or threatened in any manner, nor did she ask to stop the interview or request an attorney. Finally, DeMuth stated that during this time, defendant was offered and took a number of cigarette and bathroom breaks. Although defendant's daughter presented a contrary account, contending that defendant was threatened with the arrest of her grandson if she did not admit to her involvement in the fires, County Court credited DeMuth's testimony and deemed defendant's statement to be voluntary. Upon our review of the record, we discern no basis upon which to disturb County Court's finding ( see People v. Pouliot, 64 A.D.3d 1043, 1045–1046, 883 N.Y.S.2d 372 [2009],lv. denied13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009];People v. Button, 56 A.D.3d at 1044, 867 N.Y.S.2d 768;People v. Davis, 18 A.D.3d at 1017, 795 N.Y.S.2d 785).

Defendant's challenge to the legal sufficiency and weight of the evidence is equally unpersuasive. Defendant was convicted of three counts of arson in the third degree stemming from her involvement in a May 12, 2009 garage fire at 763 Cedar Street in the Town of Southport, Chemung County, a September 23, 2009 fire at nearby 761 Cedar Street and the May 20, 2010 fire involving her husband's truck. “A person is guilty of arson in the third degree when he [or she] intentionally damages a building or motor vehicle by starting a fire or causing an explosion” (Penal Law § 150.10[1] ). Where, as here, a defendant has confessed to a crime, he or she “may not be convicted ... solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50). Such additional proof, however, “need not establish guilt or every detail of the crime or confession” ( People v. Johnson, 79 A.D.3d 1264, 1266, 911 N.Y.S.2d 713 [2010],lvs. denied16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ); rather, the corroboration requirement “is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone” ( People v. Daniels, 37 N.Y.2d 624, 629, 376 N.Y.S.2d 436, 339 N.E.2d 139 [1975];accord People v. Thompson, 75 A.D.3d 760, 764, 904 N.Y.S.2d 797 [2010],lvs. denied15 N.Y.3d 893, 894, 896, 912 N.Y.S.2d 581, 938 N.E.2d 1016 [2010];see People v. Baltes, 75 A.D.3d 656, 659, 904 N.Y.S.2d 554 [2010],lv. denied15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010];People v. Brown, 20 A.D.3d 577, 578, 798 N.Y.S.2d 551 [2005],lv. denied5 N.Y.3d 826, 804 N.Y.S.2d 41, 837 N.E.2d 740 [2005] ). “The necessary additional evidence may be found in the presence of defendant at the scene of the crime ... or other circumstances supporting an inference of guilt” ( People v. Baltes, 75 A.D.3d at 659, 904 N.Y.S.2d 554 [internal quotation marks and citation omitted] ).

Defendant initially captured the attention of local law enforcementbecause each of the subject fires occurred in close proximity to her residence on Cedar Street ² and, for many of those fires, defendant either initiated the underlying 911 call, was a witness to the fires or provided other information regarding the fires. With respect to the May 2009 garage fire at 763 Cedar Street, defendant's written statement reveals that she used her cigarette lighter to set fire to the interior of her neighbor's garage on that date, following which she returned home and called 911. Defendant admittedly was home on the night of the fire, the origin of the fire was consistent with defendant's prior written description thereof and the property owner testified that, in addition to notifying him of the fire on the night in question, defendant approached him the following day and expressed an interest in purchasing the property. As to the September 23, 2009 fire at 761 Cedar Street, defendant's written statement indicates that she approached the back porch of that residence and, after sliding open a window, used her cigarette lighter to set fire to a set of sheer curtains—curtains that she had left behind when she and her husband moved back into their rebuilt home. According to defendant's statement, as she returned to her residence, she could hear the smoke alarm going off and called the Sheriff's Department.

Two State Troopers, Nicholas Medina and Jason Fifield, responded to the scene and were met in the middle of the street by defendant's husband. Although defendant would later tell Fifield that she had heard the smoke alarm from inside her own kitchen, both Fifield and Medina testified that they did not hear the alarm when they exited their vehicles and could not hear it until they actually approached the residence at 761 Cedar Street. As Medina neared and peered through the open window on the back porch at that location, he saw the fire directly beneath the window and returned to his vehicle to retrieve a fire extinguisher....