People v. Lind
| Decision Date | 05 November 2015 |
| Docket Number | 106118 |
| Citation | 18 N.Y.S.3d 786,2015 N.Y. Slip Op. 08004,133 A.D.3d 914 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Armando LIND, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jack H. Weiner, Chatham, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 10, 2013 in Albany County, upon a verdict convicting defendant of the crimes of attempted arson in the second degree and endangering the welfare of a child (two counts).
After an altercation with his adult daughter, defendant doused a bedroom in his home with gasoline and threatened to burn the house down. Several members of defendant's family, including defendant's two young grandchildren, were in the residence at the time. Defendant was charged with attempted arson in the second degree and two counts of endangering the welfare of a child. Following a jury trial, he was convicted as charged and sentenced to a prison term of seven years followed by five years of postrelease supervision on the attempted arson conviction, and concurrent terms of one year each on the convictions for endangering the welfare of a child. Defendant appeals.
Defendant contends that a recording of a 911 call made by his adult son should not have been admitted into evidence and, further, that in the absence of the recording, his convictions were not supported by legally sufficient evidence and were against the weight of the evidence. We disagree. A 911 dispatcher testified that he received a call on the morning of the incident from a “very excited” male caller who reported the location and nature of the emergency but did not provide his name. The dispatcher confirmed that he had listened to the recording of this conversation before the trial and that it was fair, accurate and unaltered. The People sought to admit the recording based upon this testimony; defendant objected, and Supreme Court reserved judgment. A police officer then testified that he responded to defendant's address after the dispatching center informed him that a 911 caller had reported that gasoline had been poured inside a residence at that address and a subject had threatened to burn the house down. The court allowed this testimony for the limited purpose of explaining the actions taken by the officer and not for its truth, and so advised the jury. The officer then testified that he listened to the recording of the 911 call after the incident and recognized the caller's voice as that of defendant's son, with whom he had had numerous contacts. Following this testimony, the court admitted the recording into evidence, over defendant's renewed objection, and permitted the People to play it for the jury. On the recording, agitated voices, including those of children, can be heard in the background as the caller reports that his father threatened to burn the house down and poured gasoline in a bedroom.
Contrary to defendant's various contentions upon appeal, we find no error in Supreme Court's determination on this issue. The testimony of the officer and dispatcher, taken together, provided the requisite foundation, consisting of “proof of the accuracy or authenticity of the tape by clear and convincing evidence establishing that the offered evidence is genuine and that there has been no tampering with it” ( People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986] [internal quotation marks and citation omitted]; accord People v. Bell, 5 A.D.3d 858, 861, 773 N.Y.S.2d 491 [2004] ). Moreover, when defendant's son testified after the tape was admitted, he acknowledged that he had called 911 and that the voice on the recording was his. The recording was admissible as an excited utterance, as the evidence established that it was “made under the stress of excitement caused by an external event, and [was] not the product of studied reflection and possible fabrication” (People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402 [2003] ; accord People v. Haskins, 121 A.D.3d 1181, 1183, 994 N.Y.S.2d 696 [2014], lv. denied 24 N.Y.3d 1120, 3 N.Y.S.3d 761, 27 N.E.3d 475 [2015] ; see People v. Rodriguez, 306 A.D.2d 686, 688, 761 N.Y.S.2d 368 [2003], lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630 [2003] ). Defendant's confrontation rights were not violated, as defendant had the opportunity to cross-examine the son when he testified (see Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ). Further, the call—made for the purpose of obtaining an emergency response—was nontestimonial (see People v. Warren, 124 A.D.3d 699, 701, 998 N.Y.S.2d 455 [2015] ; People v. Anderson, 114 A.D.3d 1083, 1085, 981 N.Y.S.2d 200 [2014], lv. denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ).
As for the legal sufficiency and weight of the evidence, a neighbor testified that she heard “screaming and yelling” from defendant's home and saw defendant leave the house, go into the backyard where a shed was located, and reenter the house carrying two red gasoline cans. Thereafter, according to the neighbor, “[t]here was a lot of jumping and noise and even the garage door was, like, moving.” The neighbor then saw defendant's adult daughter emerge from the house, gagging, coughing and carrying a baby. The police officer who responded to the 911 call testified that, as he approached defendant's residence, he was able to smell gasoline from 100 to 150 feet away. Defendant was in front of the house, smoking a cigarette, and attempted to enter the residence when he saw the officer, but stopped when commanded to do so. Defendant's wife, daughter, son and two grandchildren were indoors, where the odor of gasoline was so strong that the officer moved the family outside. A fire department lieutenant testified that he could smell gasoline outside defendant's residence and that the smell was strongest inside an upstairs room that appeared to be a child's bedroom, where the walls were spattered and pools of gasoline were visible on the carpet. Readings from the lieutenant's air quality meter revealed 200 parts per million of gasoline in the air of this room, a level known to cause coughing and eye and throat irritation and capable of causing ignition from sparks or other sources in nearby rooms. The lieutenant remediated the hazard by ventilating the house with fans, a process that took approximately two hours.
Defendant's son testified for the People as a hostile witness pursuant to a material witness warrant, stating that when the son awoke on the morning of the incident, he heard defendant arguing with defendant's daughter and telling her to get out of the house. He acknowledged that he placed the 911 call, but offered testimony that otherwise conflicted with the statements made in the course of that call. For example, the son testified that he did not see defendant pour the gasoline and did not know that any...
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