Opinion
July 14, 1995
Appeal from the Jefferson County Court, Clary, J.
Present — Denman, P.J., Pine, Callahan, Doerr and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of arson in the second degree, criminal mischief in the fourth degree and assault in the third degree. We reject his contention that the court abused its discretion in refusing to allow testimony that the occupant of the trailer had, on previous occasions, fallen asleep and dropped cigarettes on the floor and furniture, causing a fire. Although a defendant has the right to introduce evidence that the event was caused by a person other than himself, such evidence must do more than raise a suspicion that the conduct of the other person caused the event (People v. Aulet, 111 A.D.2d 822, 825, lv denied 66 N.Y.2d 761). Because the proffered evidence was inconsistent with the physical evidence concerning the cause of the fire, that evidence could not provide a clear link establishing that someone else caused the fire (see, People v Aulet, supra, at 825; see also, Williams v. State, 600 N.E.2d 962 [Ind App]).
We also reject defendant's contention that the evidence is legally insufficient to support the jury verdict and that the verdict is contrary to the weight of evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).
Defendant's contention on appeal that testimony that the cause of the fire was "unusual", "not normal" and "unnatural" constituted improper opinion evidence was not preserved for our review (see, CPL 470.05; People v. Osuna, 65 N.Y.2d 822, 824), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).