Opinion
2001-11048, 2001-03523
Argued November 13, 2001.
December 31, 2001.
Appeal by the People from so much of an amended order of the County Court, Nassau County (Boklan, J.), entered March 19, 2001, as granted those branches of the defendants' respective omnibus motions which were to dismiss count one of the indictment charging them with arson in the third degree.
Denis Dillon, District Attorney, Mineola, N Y (Robert A. Schwartz and Cara Brady of counsel), for appellant.
Eliot F. Bloom, Mineola, N.Y., for respondent McKinley Smith, and Thomas Foley, Mineola, N.Y., for respondent Karnes Plantin (one brief filed).
Before: LEO F. McGINITY, J.P., DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, A. GAIL PRUDENTI, JJ.
DECISION ORDER
ORDERED that the amended order is reversed insofar as appealed from, on the law, those branches of the defendants' respective omnibus motions which were to dismiss count one of the indictment are denied, count one of the indictment is reinstated, and the matter is remitted to the County Court, Nassau County, for further proceedings on the indictment.
We agree with the County Court, Nassau County, that a statement by the People's fire investigator, in the course of his Grand Jury testimony, "supported the People's theory that the fire was deliberately set" (see, People v. Goldberg, 215 A.D.2d 402). Thus, the testimony violated the rule against an arson investigator expressing an opinion that a particular fire was caused by arson (see, People v. Goldberg, supra; People v. Johnson, 186 A.D.2d 584; People v. Abreu, 114 A.D.2d 853). However, in light of all of the facts of this case, including that the remaining admissible evidence was more than sufficient to sustain an arson count, the improper comment did not impair the integrity of the Grand Jury proceeding or lead to the possibility of prejudice against the defendants (see, People v. Huston, 88 N.Y.2d 400). Accordingly, the County Court improperly dismissed the arson count of the indictment.
McGINITY, J.P., LUCIANO, FEUERSTEIN and PRUDENTI, JJ., concur.