People v. Hodges

66 A.D.3d 1228, 888 N.Y.S.2d 224
Appellate Division of the Supreme Court of the State of New York·Decided October 29, 2009·Published·Cited by 11 cases

Opinion

Garry, J.

Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.), rendered July 18, 2007, upon a verdict convicting defendant of the crimes of arson in the second degree, criminal mischief in the second degree and reckless endangerment in the first degree (five counts).

In January 2006, defendant, then age 26, began a sexual relationship with a 16-year-old girl. In June 2006, as she later testified, she ended the relationship. The girl’s parents then sent her to spend the summer with relatives in the Town of Horicon, Warren County. The relatives owned a store and resided in an apartment above. Defendant repeatedly asked the girl to return home, reacted angrily when she refused to do so, and argued with her father about having sent her away.

Late in July 2006, defendant made an anonymous e-mail complaint to the Department of Agriculture and Markets alleging that unsanitary practices at the store had made him sick. He followed up the complaint with a telephone call to the [1230]*1230Department in his own name. That night, he drove to the store and, by his own admission, started a fire under a deck at the rear of the building. After he drove away, the fire consumed the building as well as two vehicles parked nearby; the occupants escaped.

Defendant initially claimed that he was at home in bed when the fire started. Confronted with cellular telephone records contradicting this claim, he offered several alternate explanations before acknowledging that he had started the fire. He was indicted on one count each of arson in the second degree, arson in the fourth degree, and criminal mischief in the second degree, as well as five counts of reckless endangerment in the first degree. A jury convicted him of all of the charges except for arson in the fourth degree. He was sentenced to prison terms of 22 years for the arson conviction and 21/3 to 7 years for each of the six remaining convictions, with the latter six terms to run concurrently with the arson conviction, but consecutively to a sentence of lVs to 4 years that he had received for an earlier conviction in Warren County for rape in the third degree arising from his relationship with the girl. He was ordered to pay restitution and to serve five years of postrelease supervision. After a formal restitution hearing, County Court ordered defendant to pay $803,272.74 as restitution with a 5% surcharge of $40,163.64. The court also issued two orders of protection. Defendant now appeals.

Initially, defendant contends that his arson and criminal mischief convictions are not supported by legally sufficient evidence and are against the weight of the evidence, in that proof that he intended to damage the store was lacking. To prove arson in the second degree, the People were required to show that defendant “intentionally damage [d] a building by starting a fire” when there was another person in the building and defendant knew or should have known of the person’s presence (People v Cushner, 46 AD3d 1121, 1122 [2007], lv denied 10 NY3d 809 [2008]; see Penal Law § 150.15). As to criminal mischief in the second degree, the People were required to prove that “with intent to damage property of another person,” and without the right to do so, defendant damaged another person’s property worth more than $1,500 (Penal Law § 145.10). Contrary to defendant’s claim, the proof of his intent was legally sufficient to support both convictions. Intent may be inferred from the act itself, from a defendant’s conduct and statements, and from the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301 [1977]; People v Tunstall, 278 AD2d 585, 586-587 [2000], lv denied 96 NY2d 788 [2001]; People v Labar, 278 AD2d 522, 523 [2000]).

[1231]*1231On the night of the fire, defendant drove his mother’s car to the store and parked it on a side street where it was unlikely to be seen. He testified that he started the fire with a cigarette, built it up with leaves and cardboard, and fanned the flames. He allegedly left the fire to throw sticks at two different windows in an unsuccessful attempt to attract the attention of the girl inside and then returned to the fire, where the smoke had grown so heavy that he could not see his cigarette. Defendant testified that he stepped on the area where he thought the cigarette might be and then left the scene. Viewed in the light most favorable to the People, this evidence provided a “ ‘valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion’ ” that defendant intended to damage the building (People v Venkatesan, 295 AD2d 635, 636 [2002], lv denied 99 NY2d 565 [2002], cert denied 549 US 854 [2006], quoting People v Williams, 84 NY2d 925, 926 [1994]).

As a different conclusion would not have been unreasonable, “we must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Krug, 282 AD2d 874, 878 [2001], lv denied 98 NY2d 652 [2002] [internal quotation marks and citations omitted]). Defendant testified that he did not intend to damage the building, since the girl he loved was inside. He claimed that he merely intended to attract the attention of the occupants and to point out that a fire hazard existed under the deck. The People argue that defendant intended to damage the building in order to compel the girl to return home. The jury’s credibility assessments are to be given “[g]reat deference” (People v Bleakley, 69 NY2d 490, 495 [1987]), and it was free to accept some parts of defendant’s testimony and reject others (see People v Alteri, 49 AD3d 918, 920 [2008]). The girl testified that defendant had persistently pursued her, followed her, and attempted to persuade her to return home. Based on this evidence, as well as defendant’s complaint about the store to the Department on the same day as the fire, the false accounts he initially gave to police, his knowledge and experience as a volunteer firefighter, and his admission that he started the fire and even fanned the flames in an area that he considered to be a fire hazard and then left the scene without ascertaining that the fire was out or that the building’s occupants knew about it, we find that, “[w]hen viewed in a neutral light,” the weight of the evidence supports both convictions (People v Labar, 278 AD2d at 523).

Defendant next contends that his convictions for arson in the second degree and criminal mischief in the second degree are repugnant to his convictions for reckless endangerment in the [1232]*1232first degree in that the elements of intent for the first two crimes and recklessness for the others are mutually exclusive. In determining whether verdicts are repugnant, a court “must review the essential elements of each count as charged to the jury to determine whether the defendant was ‘convicted of an offense containing an essential element that the jury has found the defendant did not commit’ ” (People v Faccio, 33 AD3d 1041, 1043 [2006], lv denied 8 NY3d 845 [2007], quoting People v Trappier, 87 NY2d 55, 58 [1995]). Reckless endangerment requires a showing that “under circumstances evincing a depraved indifference to human life, [a defendant] recklessly engages in conduct which creates a grave risk of death to another person” (Penal Law § 120.25; see People v Anderson, 38 AD3d 1061, 1062 [2007], lv denied 8 NY3d 981 [2007]).

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People v. Hodges, 66 A.D.3d 1228, 888 N.Y.S.2d 224 (N.Y. Ct. App. 2009).

66 A.D.3d 1228 (People v. Hodges) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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