Opinion
2011-09-15
The PEOPLE of the State of New York, Respondent,v.Aubrey (Alnutt) PAGAN, Appellant.
Paul J. Connolly, Delmar, for appellant.Louise K. Sira, District Attorney, Johnstown (Melissa K. Johnson of counsel), for respondent.
Paul J. Connolly, Delmar, for appellant.Louise K. Sira, District Attorney, Johnstown (Melissa K. Johnson of counsel), for respondent.
MERCURE, J.P.
Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered March 1, 2010, upon a verdict convicting defendant of the crimes of insurance fraud in the third degree, grand larceny in the third degree, conspiracy in the fourth degree, reckless endangerment in the second degree and conspiracy in the fifth degree.
In 2004, a fire destroyed an apartment building that was purportedly occupied by defendant, codefendant Victor Pagan and John Hart, and owned by defendant's father, codefendant Jeffrey Alnutt. Defendant informed investigators that she may have caused the fire when she left her apartment's stove on unattended and, because other evidence was consistent with that explanation, the fire was initially deemed to have been accidental. Defendant, Pagan, Alnutt and Hart thereafter made claims against their respective insurance policies.
Police subsequently reopened their investigation into the cause of the fire after new information was discovered and, after being granted immunity from prosecution, Hart admitted that he had helped Alnutt set the fire as part of a plot to pursue fraudulent insurance claims. Pagan also contemplated accepting an offer of immunity by prosecutors, and told investigators that he “had knowledge of” the fire and “was involved in it.” He ultimately refused, however, to speak further to police regarding the fire.
Alnutt, Pagan and defendant were thereafter charged in an indictment with numerous crimes arising from the plot. At the joint trial that ensued, Pagan did not testify, and his statements to investigators were admitted into evidence solely against him. Defendant was convicted of insurance fraud in the third degree, grand larceny in the third degree, reckless endangerment in the second degree, conspiracy in the fourth degree and conspiracy in the fifth degree. She was sentenced to an aggregate prison term of 1 to 3 years, ordered to pay restitution to her insurer,
Pagan and Alnutt were also convicted of various crimes, and their appeals are currently pending before this Court.
We affirm. Initially, we reject defendant's claim that her conviction was based upon legally insufficient evidence. Contrary to her argument, Hart's accomplice testimony was sufficiently corroborated by other evidence that “tend[ed] to connect ... defendant with the commission of” the charged crimes (CPL 60.22[1]; see People v. Lee, 80 A.D.3d 877, 878, 914 N.Y.S.2d 415 [2011], lvs. denied 16 N.Y.3d 832, 921 N.Y.S.2d 197, 946 N.E.2d 185, 16 N.Y.3d 833, 921 N.Y.S.2d 197, 946 N.E.2d 185, 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ). Compelling independent proof that defendant committed the charged offenses is not required to meet the corroboration requirement; rather, the evidence need only “tend[ ] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” ( People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752 [1921]; accord People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ). In that regard, the People presented evidence that defendant purchased a renters insurance policy despite her precarious financial situation and, notably, increased her coverage shortly before the fire. Moreover, defendant admitted to her stepmother that she had not told investigators “what really happened,” then instructed her stepmother to forget those comments. Defendant also sought to be reimbursed for possessions that were incongruous with her limited resources or belonged to other people but had been inexplicably placed in her apartment, which was consistent with Hart's testimony that extraneous items were placed in the apartments in order to inflate the insurance claims. The foregoing provides the requisite “slim corroborative linkage to otherwise independently probative evidence from” Hart, thereby satisfying the corroboration requirement ( People v. Breland, 83 N.Y.2d 286, 294, 609 N.Y.S.2d 571, 631 N.E.2d 577 [1994]; see People v. Gilbo, 52 A.D.3d 952, 953–954, 859 N.Y.S.2d 521 [2008], lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ). Nor can we conclude, after evaluating the evidence in a neutral light and according deference to the jury's credibility assessments, that the jury's verdict was against the weight of the evidence ( see People v. Berry, 78 A.D.3d 1226, 1227–1228, 910 N.Y.S.2d 281 [2010], lv. denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011] ).
Defendant next claims that her conviction of reckless endangerment in the second degree was inconsistent with her acquittal of arson in the third degree. Defendant concedes that the verdict in that regard was not “inherently self-contradictory” ( People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981]; see People v. Hodges, 66 A.D.3d 1228, 1231–1232, 888 N.Y.S.2d 224 [2009], lv. denied 13 N.Y.3d 939, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010] ). She nevertheless argues that the acquittal of arson, when viewed in tandem with her conviction of conspiracy in the fourth and fifth degrees and insurance fraud in the third degree, implies that the jury found that she had not started the fire either personally or acting in concert with others. Therefore, defendant maintains, she could not simultaneously be guilty of reckless endangerment-which, as charged herein, required a finding that she had recklessly started the fire. Conspiracy, however, “is an embracive crime, covering all of the overt acts
and substantive crimes in the persisting criminal enterprise,” and not necessarily the actual commission of the crime that was the object of the conspiracy ( People v. Springer, 127 A.D.2d 250, 256, 514 N.Y.S.2d 555 [1987], affd. for reasons stated below 71 N.Y.2d 997, 529 N.Y.S.2d 275, 524 N.E.2d 876 [1988] [emphasis added] ). Hence, contrary to defendant's argument, the jury was not required to determine that defendant intentionally damaged the apartment building by setting a fire in order to convict defendant upon the conspiracy counts; rather, the jury was required to find that defendant committed an overt act in furtherance of the conspiracy ( see Penal Law §§ 105.05, 105.10). Likewise, insurance fraud required a finding that defendant intentionally concealed the cause of the fire on her insurance claim, and the jury was not further obliged to find that she intended to damage the apartment building by setting the fire ( see People v. Michael, 210 A.D.2d 874, 874, 620 N.Y.S.2d 637 [1994], lv. denied 84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463 [1995]; People v. Amar, 134 A.D.2d 601, 522 N.Y.S.2d 5 [1987] ). As such, the verdict is not inconsistent.
Defendant additionally contends that her right to confront witnesses was violated by the use of Pagan's statements at the joint trial. In light of her reliance upon both Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 [1968] to support that claim, a discussion of the interplay between those cases is required. In Crawford, the Supreme Court of the United States held “that the Confrontation Clause generally prohibits the use of ‘testimonial’ hearsay against a defendant in a criminal case, even if the hearsay is reliable, unless the defendant has a chance to cross-examine the out-of-court declarant” ( People v. Goldstein, 6 N.Y.3d 119, 127, 810 N.Y.S.2d 100, 843 N.E.2d 727 [2005], cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834 [2006] [emphasis added]; see Crawford v. Washington, 541 U.S. at 59, 124 S.Ct. 1354). There is no question that Pagan's out-of-court statements, made to an investigator, were testimonial in nature ( see Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006]; People v. Rawlins, 10 N.Y.3d 136, 147–148, 855 N.Y.S.2d 20, 884 N.E.2d 1019 [2008], cert. denied ––– U.S. ––––, 129 S.Ct. 2856, 174 L.Ed.2d 601 [2009] ). Crawford accordingly prohibits the use of Pagan's statements “against the other defendants in” this joint trial ( United States v. Ramos–Cardenas, 524 F.3d 600, 609 [5th Cir.2008], certs. denied ––– U.S. ––––, ––––, 129 S.Ct. 247, 172 L.Ed.2d 187, ––– U.S. ––––, 129 S.Ct. 403, 172 L.Ed.2d 294 [2008] ). A codefendant, however, is generally not “considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against [the] codefendant,” and nothing in Crawford alters this long-established principle ( Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 [1987]; see Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 95 L.Ed.2d 162 [1987]; United States v. Ramos–Cardenas, 524 F.3d at 607, 609–610; United States v. Lung Fong Chen, 393 F.3d 139, 150 [2d Cir.2004], certs. denied 546 U.S. 870, 126 S.Ct. 226, 372, 163 L.Ed.2d 160 [2005]; People v. Torres, 47 A.D.3d 851, 852, 850 N.Y.S.2d 529 [2008], lv. denied 10 N.Y.3d 817, 857 N.Y.S.2d 50, 886 N.E.2d 815 [2008] ). Thus, the Confrontation Clause is generally not implicated when a codefendant's statement is admitted “against” him or her alone.
Bruton sets out a narrow exception to this rule. Specifically, Bruton held
that the Confrontation Clause prohibits the introduction of “the facially incriminating confession of a nontestifying codefendant ... at their joint trial, even if the jury is instructed to consider the confession only against the codefendant” ( Richardson v. Marsh, 481 U.S. at 207, 107 S.Ct. 1702 [emphasis added] ), because such statements are so powerfully incriminating and prejudicial “that limiting instructions cannot work” ( Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 [1998]; see Bruton v. United States, 391 U.S. at 135–136, 88 S.Ct. 1620). The Bruton exception, as such, applies only when a codefendant's statement directly inculpates the accused. A statement that incriminates only when linked with other trial evidence remains admissible ( see Richardson v. Marsh, 481 U.S. at 208–211, 107 S.Ct. 1702; People v. Lewis, 83 A.D.3d 1206, 1208, 920 N.Y.S.2d 846 [2011]; People v. Sutton, 71 A.D.3d 1396, 1397, 895 N.Y.S.2d 892 [2010], lv. denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). In that instance, “while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton's exception to the general rule” ( Richardson v. Marsh, 481 U.S. at 208, 107 S.Ct. 1702; see United States v. Lung Fong Chen, 393 F.3d at 148–150; People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657 [2005] ). In short, if the statement does not directly inculpate the accused, it cannot be deemed to have been admitted against him or her and “[t]he same attenuation ... that prevents Bruton error also serves to prevent Crawford error” ( United States v. Lung Fong Chen, 393 F.3d at 150; see United States v. Harris, 167 Fed.Appx. 856, 859, 2006 WL 374205 [2d Cir.2006], cert. denied 549 U.S. 925, 127 S.Ct. 290, 166 L.Ed.2d 221 [2006]; People v. Torres, 47 A.D.3d at 852, 850 N.Y.S.2d 529).
Here, Pagan's statements were admitted as evidence against him alone and the jury was instructed to that effect. Nor did his statements implicate defendant. As noted above, Pagan stated that he “had knowledge” of and “was involved in” the fire, giving rise to an inference that the fire was not accidental. Defendant concedes that “it does not necessarily follow [from those statements] that [she] was also involved” in the arson. Rather, Pagan's statements only take on additional meaning when viewed in the light of other trial evidence that implicated defendant in the arson plot. Accordingly, Pagan's statements did not “identif[y] the defendant as the perpetrator of a crime” for purposes of Crawford or Bruton ( People v. Ruis, 11 A.D.3d 714, 714, 784 N.Y.S.2d 558 [2004], lvs. denied 4 N.Y.3d 747, 748, 790 N.Y.S.2d 660, 824 N.E.2d 61 [2004] ). Nor could the statements “be read by the jury [only] as inculpating defendant” under the facts of this case ( People v. Wheeler, 62 N.Y.2d 867, 869, 478 N.Y.S.2d 254, 466 N.E.2d 846 [1984] ). Defendant, Pagan and Alnutt were tried together for the arson plot, Hart was admittedly involved in it, and Pagan's statements could easily be read as implicating any or none of them ( see People v. Timberlake, 300 A.D.2d 219, 219–220, 752 N.Y.S.2d 315 [2002], lv. denied
The fact that Pagan's statements were not introduced as evidence against defendant makes this case readily distinguishable from those in which the plea allocution of an individual was admitted into evidence against a defendant at his or her trial on charges arising from the same incident, thus running afoul of Crawford ( compare People v. Hardy, 4 N.Y.3d 192, 196–197, 791 N.Y.S.2d 513, 824 N.E.2d 953 [2005], with People v. Lewis, 83 A.D.3d at 1208, 920 N.Y.S.2d 846).
99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003]; People v. Adams, 225 A.D.2d 506, 506, 640 N.Y.S.2d 37 [1996], lv. denied 88 N.Y.2d 932, 647 N.Y.S.2d 166, 670 N.E.2d 450 [1996]; cf. People v. Reid, 82 A.D.3d 1495, 1497–1498, 919 N.Y.S.2d 560 [2011] ). In short, Pagan's statements did “not implicate defendant in any wrongdoing,” and their admission at trial did not deprive defendant of her right to confront witnesses against her ( People v. Lewis, 83 A.D.3d at 1208, 920 N.Y.S.2d 846; see People v. Dickson, 21 A.D.3d at 647, 799 N.Y.S.2d 657).
Defendant's remaining contention has been examined and found to be without merit.
ORDERED that the judgment is affirmed.
SPAIN, KAVANAGH, GARRY and EGAN JR., JJ., concur.