People v. Wojes

• Decision Date: 26 June 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>CHERYL WOJES, Appellant.
• Court: New York Supreme Court — Appellate Division

306 A.D.2d 754

763 N.Y.S.2d 103

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.CHERYL WOJES, Appellant.

Spain, J.

Decided June 26, 2003.

Cardona, P.J., Mercure, Rose and Kane, JJ., concur.

Spain, J.

Following a jury trial, defendant was convicted of third degree arson and fourth degree criminal mischief for her conduct on July 7, 2000, in intentionally damaging a residential building located at 833-837 Cutler Street in the City of Schenectady, Schenectady County, by starting a fire, recklessly damaging nearby property. The City reportedly held title to the property having foreclosed due to nonpayment of taxes by a member of defendant's family and, three weeks prior to the fire, gave defendant notice to vacate within 30 days upon discovering that she was residing there. The evidence at trial included defendant's oral and written admissions to intentionally setting the fire—by lighting a book of matches, throwing it on a chair, fanning the flames and leaving the building—out of vengeance against the City for the eviction. Eyewitnesses reported seeing defendant leave the house at the time of the fire and walk down the street, carrying a smoldering cushion and stating that she had fallen asleep with a lit cigarette. A neighbor also looked inside the building and observed a couch cushion engulfed in flames. Sentenced to concurrent terms of imprisonment, the maximum being an indeterminate term of 5 to 15 years, and ordered to pay restitution, defendant appeals.

Defendant's initial contention is that County Court erred by failing to order a competency hearing. However, at the request of defense counsel, the court ordered defendant to be examined by two psychiatrists, both of whom examined defendant and submitted reports to the court prior to the suppression hearing concluding that defendant was competent to stand trial (see CPL 730.30 [1], [2]; People v May, 301 AD2d 784, 785 [2003]). Defense counsel did not request a hearing and, in view of the medical experts' consensus that defendant was competent, we perceive no basis in the record upon which to conclude that the court abused its discretion in failing sua sponte to conduct such a hearing (see CPL 730.30 [2]; People v Tortorici, 92 NY2d 757, 765-767 [1999], cert denied 528 US 834 [1999]; People v Gensler, 72 NY2d 239, 244-246 [1988], cert denied 488 US 932 [1988]; People v Horan, 290 AD2d 880, 882 [2002], lv denied 98 NY2d 638 [2002]). Defendant's asserted history of psychiatric illness is not documented in the record before us and would not, by itself, call into question her competence to stand trial (see People v Tortorici, supra at 765). Moreover, a review of the record as a whole fails to support defendant's claim that defense counsel's decision not to request a competency hearing lacked a legitimate reason or constituted ineffective assistance of counsel (see People v Dunn, 261 AD2d 940, 941 [1999], lv denied 94 NY2d 822 [1999]; People v Wheeler, 249 AD2d 774, 775 [1998]; People v Charlton, 192 AD2d 757, 759-760 [1993], lv denied 81 NY2d 1071 [1993]).

Defendant also contends that all of her statements to police and fire officials on the day of the fire, July 7, 2000, should have been suppressed as the product of an initial illegal police detention and that all but the first statement followed her invocation of her right to remain silent, which was not scrupulously honored. The suppression testimony established that defendant, while walking in the vicinity of the fire and appearing disheveled and with leg bandages, was approached by a police sergeant who asked for her name, from where she was coming and if he could talk to her. She matched the general description of a person who was a possible suspect. Defendant provided incomprehensible responses, appeared highly intoxicated and was unstable on her feet, prompting the sergeant to ask "if she wouldn't mind having a seat" in his police vehicle so someone could speak with her. Defendant sat in the rear seat, the door was briefly closed and she fell asleep. Contrary to defendant's claims, the record does not support the conclusion that she was forcibly detained, seized or arrested (see People v Hollman, 79 NY2d 181, 184-185 [1992]). Rather, the sergeant's nonthreatening, basic questions constituted an initial request for information, which was supported by objective, credible— but not necessarily criminal—reasons (see id.; People v Jackson, 251 AD2d 820, 822 [1998], lv denied 92 NY2d 926 [1998]). At most, the sergeant undertook a common-law right of inquiry based upon a founded suspicion that criminal activity was afoot (see People v Hollman, supra at 184-185, 191; People v De Bour, 40 NY2d 210, 223 [1976]; People v Jackson, supra at 822-823).

A short time later, a police detective seated in the front seat of the patrol car asked defendant, seated in the rear seat with the door open, what happened, to which defendant replied that a young boy had thrown an object into the building causing the fire. Defendant was not in custody and no Miranda warnings were required (see People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). When asked if she would provide a written statement to this effect, defendant replied, "I won't give you a statement and I won't sign anything." Rather than unequivocally invoking her right to remain silent, defendant simply refused to provide and sign a written statement at that time and, accordingly, the subsequent noncustodial questioning was permissible (see People v Sprague, 267 AD2d 875, 878-879 [1999], lv denied 94 NY2d 925 [2000]; see also People v Hendricks, 90 NY2d 956, 957 [1997]). About an hour later, the City fire chief spoke to defendant on the sidewalk and, when asked, defendant attributed the fire to a space heater and, unable to explain the two other reasons she had given for the fire, was taken to the hospital for treatment of her leg burns.

Defendant also moved to suppress oral and written statements she made to the fire chief on July 25, 2000 in a conference room at the fire department offices—admitting she intentionally set the fire to retaliate against the City's eviction—when she went there to inquire about gaining access to the building, which was boarded up and had been condemned. She claims that her statements were coerced and involuntary since the fire chief refused her access to retrieve her belongings unless she agreed to disclose the cause of the fire. However, the suppression testimony fully supports County Court's finding that the questioning was voluntary and not custodial. Defendant was repeatedly advised that she could leave and, in fact, did so after signing the statement, no promises were made that she could access the building if she provided a statement, the questioning was not in any manner coercive or threatening, and there was no showing that her will was overcome in any respect so as to support a finding that her statement was other than voluntary (see CPL 60.45; People v Guillery, 267 AD2d 781, 781-782 [1999], lv denied 94 NY2d 920 [2000]; cf. People v Anderson, 42 NY2d 35, 38 [1977]).

Next, defendant argues that the weight of the evidence failed to support the criminal mischief conviction due to the absence of proof that the radiant heat damage to a neighboring house was a foreseeable consequence of her conduct. Viewing the evidence in a neutral light, we find that while a different finding would not have been unreasonable, the weight of the credible evidence supported the jury's conclusion that when defendant fanned the flames on the fire she had intentionally set and then left the building, she was "aware of and consciously disregard[ed] a substantial and unjustifiable risk" (Penal Law § 15.05 [3]) that her conduct would cause such damage to nearby property, and that this disregard "constitut[ed] a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law §...