People v. Cushner

46 A.D.3d 1121, 847 N.Y.S.2d 723
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 20, 2007
StatusPublished
Cited by11 cases

This text of 46 A.D.3d 1121 (People v. Cushner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cushner, 46 A.D.3d 1121, 847 N.Y.S.2d 723 (N.Y. Ct. App. 2007).

Opinion

Kane, J.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered August 5, 2005, upon a verdict convicting defendant of the crime of arson in the second degree.

Defendant rented space for his bakery and deli called Sweets and Eats in a building which also contained two other businesses and two upstairs apartments. Less than an hour after defendant and his then girlfriend, now wife, closed his shop and left for the day, a fire was discovered in the building. The tenants of the apartments were home and escaped without injury, but the building was destroyed. A grand jury indicted defendant on charges of arson in the second degree and arson in the third degree. At trial, he was convicted of both counts. County Court dismissed the lesser included offense and sentenced defendant on arson in the second degree. Defendant appeals.

Defendant’s conviction is supported by legally sufficient evidence. A defendant is guilty of arson in the second degree when he or she intentionally damages a building by starting a fire, another person is present in the building and the defendant knows or should reasonably know that a person was present (see Penal Law § 150.15). It is uncontested that a fire occurred which destroyed the building, and tenants of the apartments were in the building at that time. An arson investigator testified that the fire originated on the front left burner of the stove in defendant’s business and was caused by that burner being turned on high heat while a pan of grease was on the burner. Defendant and his girlfriend were the last ones to leave Sweets and Eats, with defendant leaving last through the door immediately next to the stove. Defendant cooked french fries on that burner earlier in the day, but stated that he turned the burner off about half an hour before he left. The fire department was called because the fire was raging approximately 40 minutes after defendant left. Testimony established that everyone who was known to have a key to any business on the ground floor of the building was not present on the day of the [1123]*1123fire, except for defendant. Defendant admittedly owed more than $30,000 in debts related to the business, and his $20,000 insurance policy covering the contents of the business was set to expire approximately one month from the date of the fire. Considered in a light most favorable to the People, this evidence sufficiently demonstrated that defendant intentionally set the fire (see People v Wood, 299 AD2d 739, 742 [2002], lv denied 99 NY2d 621 [2003]).

The conviction was also supported by the weight of the evidence. Without any question that a fire occurred, the only real questions at trial were whether defendant started the fire and, if so, whether he did it intentionally. As it would not have been unreasonable for the factfinder to reach a different result, we must weigh the relative probative force of conflicting evidence and the strength of conflicting inferences to be drawn from such evidence to see if the jury gave the evidence the weight it should be accorded (see People v Romero, 7 NY3d 633, 643 [2006]). We must review the evidence in a neutral light, without distinguishing between direct and circumstantial evidence (see People v Labar, 278 AD2d 522, 522 [2000]),

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Cite This Page — Counsel Stack

Bluebook (online)
46 A.D.3d 1121, 847 N.Y.S.2d 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cushner-nyappdiv-2007.