Opinion
May 1, 1995
Appeal from the Supreme Court, Kings County (Juviler, J.).
Ordered that the judgment is affirmed.
The defendant correctly contends that the expert testimony of a Fire Marshal as to the cause of the fire at the complainant's home was improperly admitted into evidence (see, People v Johnson, 186 A.D.2d 584; People v Abreu, 114 A.D.2d 853, 854). The Fire Marshal testified that his findings were "consistent" with someone squirting lighter fluid from outside the apartment inward and igniting it. The Fire Marshal's testimony was not "an appropriate factual observation * * * regarding the condition of the premises which he inspected" (People v Rivera, 131 A.D.2d 518), but in essence confirmed the prosecutor's specific theory that the fire was deliberately set (see, People v Johnson, supra; People v Koullias, 96 A.D.2d 869). Although the prosecutor posed these questions as hypotheticals, the testimony still was sufficiently related to the facts of the present case so as to be improper.
However, due to the overwhelming evidence against the defendant, reversal is not warranted (see, People v Maldonado, 157 A.D.2d 674). In particular, the evidence adduced at the trial revealed that the defendant called his wife, the complainant, less than two hours before the fire and threatened to kill her. The defendant also told his wife that he would "fix it" so she did not have a place to stay. Thereafter, at about the time of the fire, the defendant was observed entering the complainant's building and going to her floor. Four days later, the defendant admitted he set the fire to a co-worker of the complainant. A year later, the defendant again admitted that he set the fire when threatening the complainant that he would do something more serious if he had to serve jail time.
Additionally, the trial court's charge on expert testimony apprised the jury that it had the power to reject the expert's testimony and that it was their determination of fact which controlled (see, People v Johnson, supra, 186 A.D.2d 584; People v Maldonado, supra, 157 A.D.2d 674; cf., People v Abreu, supra, 114 A.D.2d 853).
The defendant's remaining contentions are either without merit or unpreserved for appellate review. Thompson, J.P., Santucci, Friedmann and Florio, JJ., concur.