People v. Vega

• Decision Date: 07 March 2019
• Docket Number: 108895
• Citation: 95 N.Y.S.3d 620,170 A.D.3d 1266
• Parties: The PEOPLE of the State of New York, Respondent, v. Gabriel VEGA, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1266

95 N.Y.S.3d 620

The PEOPLE of the State of New York, Respondent,

v.Gabriel VEGA, Appellant.

108895

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

Calendar Date: January 10, 2019

Decided and Entered: March 7, 2019

Paul J. Connolly, Delmar, for appellant.

Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.

Erin Beth Harrist, New York Civil Liberties Union, New York City, and Sarah Samuels Wheeler, Reproductive Justice Clinic New York University School of Law, New York City, amici curiae.

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

On April 3, 2014, firefighters responded to an apartment fire in the City of Troy, Rensselaer County, where they found the victim's badly-burned body. The victim was in the final week of a full-term pregnancy and had been strangled – which also resulted in the death of her unborn child – before her body was doused with gasoline and set on fire. Defendant was indicted for the crimes of murder in the first degree, murder in the second degree, burglary in the first degree, burglary in the second degree, arson in the second degree, arson in the third degree and abortion in the first degree. Prior to trial, defendant moved, pursuant to CPL 210.30(2), for County Court to review the grand jury minutes to determine whether the charges were supported by legally sufficient evidence. Upon review, County Court dismissed the charges of murder in the first degree, burglary in the first degree and burglary in the second degree and determined that the grand jury proceeding was not otherwise defective.

At the ensuing jury trial, defendant was acquitted of murder in the second degree and convicted of manslaughter in the first degree, which County Court had charged as a lesser included offense of murder in the second degree, arson in the second degree, arson in the third degree and abortion in the first degree. At sentencing, Supreme Court dismissed the charge of arson in the third degree, as a lesser included offense of arson in the second degree, and sentenced defendant to two consecutive prison terms of 25 years for his conviction of manslaughter in the first degree and arson in the second degree, to be followed by five years of postrelease supervision, and a concurrent prison term of 2 to 7 years for his conviction of abortion in the first degree. Defendant appeals.

Defendant first argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. He specifically contends that the evidence was legally insufficient to establish that he was the individual who committed the three crimes and, further, that the evidence was legally insufficient to establish that he committed an abortional act, a required element of his conviction of abortion in the first degree. Defendant's legal sufficiency challenges are unpreserved for our review because defense counsel's motion for a trial order of dismissal was not specifically directed at these alleged errors (see People v. Gill, 168 A.D.3d 1140, 1140, 90 N.Y.S.3d 392 [2019] ; People v. Green, 141 A.D.3d 1036, 1037, 36 N.Y.S.3d 312 [2016], lv denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016] ). Nevertheless, in conducting our weight of the evidence review, we must determine whether each element of the crimes for which defendant was convicted was proven beyond a reasonable doubt (see People v. Gill, 168 A.D.3d at 1140, 90 N.Y.S.3d 392 ).

"When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( id. [internal quotation marks and citations omitted] ). As relevant here, "[a] person is guilty of manslaughter in the first degree when ... [, w]ith intent to cause serious physical injury to another person, he [or she] causes the death of such person or of a third person" ( Penal Law § 125.20[1] ). "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 ).

At trial, Theresa Rotsford testified that she was with the victim on April 3, 2014, the day she died, from approximately 8:00 a.m. to 9:00 a.m. and again from 12:00 p.m. to 4:30 p.m. Ginelly Santana testified that she was alone with the victim at the victim's apartment on the evening she died from approximately 8:00 p.m. to 9:45 p.m., and the apartment door was unlocked when she left. The victim's next-door neighbor, Jeffrey Cook, testified that he was in his residence at approximately 11:00 p.m. on April 3, 2014 when he "heard a loud bang noise" and immediately looked outside to see smoke emanating from a window in the victim's building. Cook exited his house and, as he began warning other residents to exit both buildings, the male driver of a vehicle that was stopped in the street asked Cook if he was looking for a man carrying a red duffel bag. Nicholas Cook, who lived with Jeffrey Cook, also testified that he heard a "loud bang" from between his building and the victim's building next door. When Nicholas Cook looked outside, he saw that a passing vehicle had stopped and he also saw a skinny "Spanish" or "ethnic" man "getting ready to run but at the same time [was] still watching the [victim's] house." When the man began to run, the Cooks pursued him in a pickup truck to no avail. Daisy Harmon, who lived in an apartment in the same building as the victim, was at home when she also heard an "explosion" around 11:00 p.m. and immediately noticed smoke in her kitchen. She went out on her balcony and saw the Cooks outside, one of whom yelled for her to leave the house. Harmon immediately went to the victim's apartment and discovered that the door was unlocked, which she found unusual because the door was "never unlocked." Harmon briefly entered the victim's apartment, but was forced to exit quickly due to "really heavy smoke." After she exited, she saw "heavy flames and smoke coming out of [the victim's] bedroom window."

The People called two additional witnesses who claimed to have seen a man running from the vicinity of the victim's apartment near the time the fire was discovered. Edward Short testified that he was driving near the victim's apartment at approximately 11:00 p.m. on that night when he saw a "thin, light skinned male running across the street" wearing a dark, hooded sweatshirt and carrying a Nike, pull-string bag. Short recalled that the man "was running extremely hard, like he was trying to get away from something or something was threatening him," and that he then saw smoke in the vicinity of the victim's building. According to Short, the man disappeared near a restaurant across the street from the victim's building. Short thereafter reported the fire to a nearby police officer. Corrine Tario similarly testified that she was driving near the victim's building around 11:00 p.m. when she nearly hit a man wearing a red hat and white T-shirt who was carrying a red backpack as he suddenly darted in front of her vehicle. Tario averred that the man stopped and looked at her "for just a brief second" and that, given the street lights and her vehicle lights, she was able to see his face. Tario identified that man as defendant. Following this incident, Tario continued driving and heard two, simultaneous "booms." After driving approximately eight blocks further, she stopped to tell two police officers that she believed someone was shot near the restaurant across from the victim's building.

Thomas Miter, a member of the Troy Fire Department who responded to the fire at the victim's apartment, testified that he located the victim's badly-burned body on the floor of a bedroom. Thomas Daus, a certified fire investigator, testified that his investigation established that an ignitable fluid was used to intentionally start the fire in the bedroom where the victim's body was found. He further concluded that the heat generated by the fire caused the windows to fail, creating the explosive sound that several witnesses described, and opined that this explosion would have occurred less than three minutes after the fire began. In addition, Daus noted that, before the fire began, the fire alarms had been disabled at a switch box located in the basement. Frank Padula, a forensic scientist for the State Police, testified that samples of the ignitable liquid taken from the victim's bedroom were identified as gasoline.

Michael Sikirica, the Rensselaer County Medical Examiner, who performed an autopsy on the victim, testified that the victim had been so severely burned that she could not be visually identified and that she was pregnant with a fetus who was at least 35 weeks old. Sikirica concluded that the victim died from "asphyxia due to strangulation" before the fire began because her lungs were "totally normal," her toxicology results showed no carbon monoxide in her blood and the soft tissue on her neck showed signs of hemorrhaging consistent with strangulation. He also concluded that the fetus, which appeared to be otherwise healthy, died from a lack of oxygen after the victim died. Daniel Myers, a second forensic scientist for the State Police, testified that he had determined, based on DNA samples taken from the fetus and defendant, that there was "a greater than...