People v. Richardson

• Decision Date: 02 October 2008
• Docket Number: 100954.
• Citation: People v. Richardson, 55 A.D.3d 934, 865 N.Y.S.2d 138, 2008 NY Slip Op 7178 (N.Y. App. Div. 2008)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES RICHARDSON, Appellant.
• Court: New York Supreme Court — Appellate Division

55 A.D.3d 934

865 N.Y.S.2d 138

2008 NY Slip Op 07178

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.JAMES RICHARDSON, Appellant.

100954.

Appellate Division of the Supreme Court of the State of New York, Third Department.

October 2, 2008.

Appeal from a judgment of the Supreme Court(Lamont, J.), rendered February 15, 2007 in Albany County, upon a verdict convicting defendant of the crimes of arson in the third degree and insurance fraud in the third degree.

Peters, J.

Less than two hours after defendant left his home in the City of Albany, a fire was discovered on the second floor.While extinguished relatively quickly, the rear of the building, particularly the kitchen, suffered severe damage.Defendant thereafter notified his insurance company of the loss and, following an investigation of the fire, he was subsequently charged with the crimes of arson in the third degree and insurance fraud in the third degree.Following a jury trial, defendant was convicted as charged and sentenced to an aggregate term of 3 1/3 to 10 years in prison.This appeal ensued.

Defendant's primary contention is that his convictions, which rested solely upon circumstantial evidence, are against the weight of the evidence.¹A determination as to whether the verdict is supported by the weight of the evidence requires us to independently review the evidence and, if a different verdict would not have been unreasonable, to "`weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'"(People v Bleakley,69 NY2d 490, 495[1987], quotingPeople ex rel. MacCracken v Miller,291 NY 55, 62[1943]).Upon such review, we do not distinguish between direct and circumstantial evidence (seePeople v Cushner,46 AD3d 1121, 1123[2007], lv denied10 NY3d 809[2008]).

It is undisputed that defendant had sole access to the building.Further, arson investigators Richard Coleman and Thomas Mitchell concluded that the fire had originated in the northwest corner of defendant's kitchen, where a space heater, refrigerator stove, microwave, water cooler and outside light were all plugged into and powered by a single electrical outlet through the use of a power strip.In discerning the source of the blaze, both Coleman and Mitchell testified that they were able to exclude all accidental causes.A subsequent lab report confirmed the presence of a medium petroleum distillate on a portion of the baseboard where the fire originated.

Nonetheless, viewing the evidence in a neutral light, we conclude that defendant's convictions are not supported by the weight of the evidence (seePeople v Bleakley,69 NY2d at 495).Notably, both Coleman, who commenced his training as a fire investigator just five months prior to the fire, and Mitchell, the investigator hired by the insurance company, conceded that they were unable to pinpoint the actual cause of the fire.Moreover, and critically, while they had ruled out the possibility of mechanical sources, neither chose to have the majority of appliances inspected, which were grouped together in the northwest corner of the small, compact kitchen.Further, the investigators stated that, upon entering the building, they noticed three tripped circuit breakers—indicating a potential circuit overload—but neglected to determine the source of the breakers' failure or with which appliances they were associated.Rather, Coleman, in excluding the possibility of an electrical fire, relied on the expert report of Stuart Morrison, an engineer specializing in failure analysis.While Morrison examined the space heater, electrical outlet, power strip and the remains of several electrical wires, the fact remains that his report was completed without the benefit of visiting the scene, investigating the tripped circuit breakers or examining the remaining electrical appliances—all of which were in close proximity to the fire's origin.Under these circumstances, we cannot conclude that the expert testimony reasonably excluded the possibility of an electrical fire (seePeople v Trippoda,40 AD2d 388, 393[1973]).

Of equal importance, defendant testified that he was in the process of repainting the kitchen at the time of the fire and that he stored a plastic bottle of charcoal lighter fluid, which he used for his charcoal grill, in a box near the space heater.²The import of this information became apparent, as both Coleman and Margaret LaFond, a forensic scientist, testified that the portions of the baseboard where the fire originated tested positive for a medium petroleum distillate—examples of which include paint thinner and some brands of charcoal lighter fluid.However, neither Coleman nor LaFond identified the specific distillate found on the baseboard and, critically, failed to provide unequivocal testimony excluding paint thinner, turpentines or charcoal lighter fluid as the source of the distillate.Furthermore, and not insignificantly, although Mitchell discovered a burn pattern on the kitchen floor, subsequent testing of those portions of the floor came back negative for the presence of ignitable fluids.

Moreover, the record does not support the inference that defendant had a motive to commit the arson.Although motive is not an element of the crime, it nonetheless cannot be ignored (seePeople v Cushner,46 AD3d at 1123;People v Hamilton,129 AD2d 859, 862[1987]).Indeed, where, as here, a case is based entirely upon circumstantial evidence, "`the motive often becomes not only material but controlling, and in such cases the facts from which it may be inferred must be proved.It cannot be imagined any more than any other circumstance in the case'"(People v Lewis,275 NY 33, 40[1937], quotingPeople v Fitzgerald,156 NY 253, 258[1898];seePeople v Schatz,37 AD2d 584, 585[1971]).

While the evidence established that defendant owed approximately $3,000 in taxes and was often late paying his bills,³ his financial situation was far from dire (seeChenango Mutual Ins. Co. v Charles,235 AD2d 667, 669[1997];comparePeople v Grassi,92 NY2d 695, 698[1999];People v Cushner,46 AD3d at 1123).Defendant owned his home free and clear of any mortgage or other financial encumbrance and, in fact, was in the process of renovating it when the fire occurred (seePeople v Lewis,275 NY at 41-42).Further, although the dissent correctly states that defendant purchased an increase in insurance about a month before the fire, it fails to acknowledge that his coverage was nonetheless consistent with that of previous policies he had held⁴ and, more significantly, was grossly inadequate to the loss sustained (comparePeople v Venkatesan,295 AD2d 635, 637[2002], lv denied99 NY2d 565[2002], cert denied549 US 854[2006];People v Labar,278 AD2d 522, 523[2000];People v Karadimas,134 AD2d 952, 952[1987], lv denied70 NY2d 933[1987]).Specifically, the value of defendant's personal property lost by the fire exceeded the policy limits by approximately $30,000 and the cost of repairs to the building exceeded his limits by nearly $8,000 according to the insurance company's adjuster and $30,000 according to an adjuster hired by defendant.More tellingly, defendant had not removed any of his personal items from his home prior to the fire (comparePeople v Beyor,272 AD2d 929, 930[2000], lv denied95 NY2d 832[2000];People v Flick,147 AD2d 957, 957[1989], lv denied73 NY2d 921[1989]) and, upon arriving at the scene, he importuned the firefighters to retrieve from his home the flag that had draped his father's casket.

Given the paucity of the proof on the issue of motive, along with the questionable basis for the fire investigators' conclusion that all accidental causes of the fire had been excluded, we cannot conclude that the evidence was "`of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt'"(People v Cahill,2 NY3d 14, 58[2003], quotingPeople v Crum,272 NY 348, 350[1936];seePeople v Clark,52 AD3d 860, 861-862[2008]).

1.While defendant also argues that the evidence was legally insufficient to support his convictions, his general motion to dismiss upon the close of the People's case and again at the close of all proof was insufficient to properly preserve this claim...