Opinion
1482 KA 14–01983
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Samuel F. CRAWFORD, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (ZACHARY S. MAURER OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (ZACHARY S. MAURER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of arson in the third degree ( Penal Law § 150.10[1] ), attempted insurance fraud in the fifth degree (§§ 110.00, 176.10), conspiracy in the fifth degree (§ 105.05[1] ), and two counts of arson in the fourth degree (§ 150.05[1] ), based on evidence that he conspired with others to set fire to his vacant rental property in order to collect insurance money. The fire destroyed defendant's property and caused damage to two neighboring properties. Contrary to defendant's contention, we conclude that County Court properly refused to suppress his statements to the police. The People proved beyond a reasonable doubt that the statements were not products of coercion, but rather were the "result of a ‘free and unconstrained choice’ " by defendant ( People v. Thomas, 22 N.Y.3d 629, 641, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ; see People v. Buchanan, 136 A.D.3d 1293, 1293–1294, 23 N.Y.S.3d 788 [4th Dept. 2016], lv denied 27 N.Y.3d 1129, 39 N.Y.S.3d 111, 61 N.E.3d 510 [2016] ).
Contrary to defendant's further contention, the trial testimony regarding his parole status was properly admitted in evidence to complete the narrative of the events leading up to the charged crimes (see People v. Ramos, 287 A.D.2d 471, 472, 731 N.Y.S.2d 50 [2d Dept. 2001], lv denied 97 N.Y.2d 657, 737 N.Y.S.2d 59, 762 N.E.2d 937 [2001] ). Although we agree with defendant that the court abused its discretion in precluding defendant from cross-examining a prosecution witness concerning that witness's alleged prior threat to burn down another person's house (see generally People v. Smith, 27 N.Y.3d 652, 668, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ), we conclude that the error is harmless because the evidence of defendant's guilt, including his videotaped confession, is overwhelming and there is no significant probability that defendant otherwise would have been acquitted (see People v. Morales, 25 A.D.3d 624, 625, 807 N.Y.S.2d 142 [2d Dept. 2006], lv denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct during the cross-examination of defendant and on summation is not preserved for our review (see People v. Brown, 120 A.D.3d 1545, 1545, 992 N.Y.S.2d 591 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).Defendant's contention with respect to the court's alleged violation of his right to due process in imposing the maximum sentence is patently without merit. Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.