People v. Burton

2023 NY Slip Op 01919

The People of the State of New York, Respondent, v. Dwight D. Burton, Appellant.

Nos. 109834, 112642

Supreme Court of New York, Third Department

April 13, 2023

Calendar Date: February 23, 2023

Kathy Manley, Selkirk, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Benjamin E. Holwitt of counsel), for respondent.

Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.

McShan, J.

Appeals (1) from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered September 27, 2017 convicting defendant following a nonjury trial of the crimes of arson in the first degree, murder in the second degree (two counts), attempted murder in the second degree, assault in the first degree (two counts), murder in the first degree (three counts) and aggravated criminal contempt, and (2) by permission, from an order of said court, entered March 23, 2020, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In the early morning hours of October 19, 2015, a fire erupted at a residence in the Village of Johnson City, Broome County that claimed the lives of two children and caused serious injuries to the children's mother (hereinafter the mother) and defendant's ex-girlfriend (hereinafter the ex-girlfriend). Following an investigation, defendant was charged by a 10-count indictment with arson in the first degree, two counts of murder in the second degree, attempted murder in the second degree, two counts of assault in the first degree, three counts of murder in the first degree and aggravated criminal contempt. Defendant thereafter waived his right to a jury trial and was found guilty as charged following a bench trial. In September 2017, defendant was sentenced to concurrent prison terms of life without the possibility of parole for each conviction of murder in the first degree and to lesser concurrent terms of incarceration on the remaining convictions. In June 2019, defendant moved, pro se, pursuant to CPL 440.10 to vacate the judgment of conviction on the grounds of actual innocence, newly discovered evidence, ineffective assistance of counsel and prosecutorial misconduct. County Court denied defendant's motion without a hearing, finding, as is relevant here, that the record demonstrated that defendant was afforded the effective assistance of counsel. Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL 440.10 motion.

Turning first to defendant's weight of the evidence challenge, we must necessarily review whether each element of the crime was proven beyond a reasonable doubt (see People v Hodgins, 202 A.D.3d 1377, 1379 [3d Dept 2022]; People v Chaneyfield, 157 A.D.3d 996, 996 [3d Dept 2018], lv denied 31 N.Y.3d 1012 [2018]). In so doing, we must first determine, "based upon all of the credible evidence, [whether] a different verdict would have been unreasonable and, if it would not have been, we then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" (People v Taylor, 207 A.D.3d 806, 807 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 942 [2022]). "[A]s relevant here, the appropriate standard for evaluating a weight of the evidence argument on appeal is the same regardless of whether the finder of fact was a judge or a jury" (People v Race, 78 A.D.3d 1217, 1219-1220 [3d Dept 2010] [internal quotation marks and citation omitted], lv denied 16 N.Y.3d 835 [2011]).

Defendant, in sum and substance, contends that the People failed to establish that he acted with the requisite intent to sustain his convictions for first- and second-degree murder and attempted murder. The trial evidence established that on the evening preceding the fire, the two children and their mother were home in their third-floor apartment, along with the ex-girlfriend and an individual she was dating at the time (hereinafter the paramour). According to the testimony of the mother, at around 9:00 p.m., defendant showed up at her apartment asking to speak with the ex-girlfriend about unauthorized purchases that she may have made using his bank card. An argument ensued in the kitchen between defendant, the ex-girlfriend and the paramour, prompting the mother to ask them to take their conversation outside to avoid waking the children. The three then proceeded downstairs and continued their discussion on the front porch. According to the paramour, he briefly exchanged fighting words with defendant before eventually returning upstairs, leaving defendant and the ex-girlfriend on the porch. The occupant of the second-floor apartment testified that she observed the aforementioned argument and that, afterwards, she briefly spoke with defendant before going inside to have dinner with her children and her former boyfriend (hereinafter the boyfriend), who was residing with her at the time. Similarly, the boyfriend testified that he had observed defendant arguing with someone on the front porch earlier in the day and that he saw him later that evening standing outside of the building with a gas can in his hand.

Meanwhile, according to the mother, the paramour returned upstairs after the argument and proceeded to pack his things and place a bag outside the ex-girlfriend's room. The mother testified that the paramour then sat at the foot of the mother's bed and charged his phone until the ex-girlfriend returned upstairs, at which point the two went to the ex-girlfriend's room for the night. Although the mother noted that she had previously given investigators a statement that the paramour had left the home after initially returning upstairs, at trial she testified that the paramour was still in the home when she locked her door at 10:30 p.m. The mother then fell asleep and awoke to find the apartment filled with smoke. According to the mother, she attempted to get to her bedroom door but was quickly forced to jump out of the window because the room was engulfed in flames. Consistent with that account, the paramour testified that, after going to bed with the ex-girlfriend, he awoke early in the morning and observed a fire coming through the front door of the apartment. According to the paramour, he ran down to the second-floor apartment to get help, but when he heard the ex-girlfriend screaming, he went back upstairs and grabbed her before proceeding down the back staircase of the building.

The second-floor occupant testified that she was watching television in her apartment while her boyfriend was asleep on the couch, when she smelled gas and told her boyfriend to investigate. The boyfriend proceeded into the kitchen of their apartment, at which point he observed defendant through the window of the apartment door walking toward him while pouring gas on the second-floor landing. When the boyfriend opened the door, he observed a small fire on the floor in the hallway and defendant standing at the bottom of the stairs. According to the boyfriend, he shouted at defendant, who turned and fled while attempting to cover his face with his jacket. Similarly, the second-floor occupant stated that she looked out of the door of her apartment and saw defendant at the bottom of the stairs with a gas can in his hand. She also testified that defendant was wearing the same jacket he had on when she had encountered him earlier. After she and the boyfriend were able to evacuate the building, the second-floor occupant called 911 and reported that the house was on fire, with the young children in the third-floor apartment, and that defendant was the perpetrator. A recording of the 911 call was introduced at trial and corroborated that the second-floor occupant had reported, immediately after the fire had commenced, that defendant started the fire.

The various responding firefighters testified that they arrived at the scene shortly after 2:00 a.m., initially encountering smoke on the second floor and observing that the fire was at the top of the third-floor stairwell. After gaining access to the third-floor apartment, firefighters recovered the two children, who were pronounced dead at the scene due to smoke inhalation. Consistent with that account, the fire investigator testified that there was light smoke damage to the first floor, heavier smoke damage on the second floor and more heat and fire damage on the third floor. The fire investigator also testified that the fire was incendiary, as there was evidence of gasoline pooling at the second-floor landing leading to the third floor, a trail of ignitable liquid up the stairs and further pooling at the top of the stairs on the third floor. An investigator with the police department testified that when they arrived at defendant's house to ask him to come to the station for an interview, they initially advised him that something had happened to the ex-girlfriend, to which he responded, "F**k that b**ch." Investigators later executed a search of defendant's person at the police department and at defendant's apartment, and secured several articles of clothing, including a black jacket. Investigators noted that inside the left pocket of that jacket was a red plastic safety cap that was consistent with the cap for a gas can. Forensic testing on defendant's shoes also revealed the presence of trace amounts of gasoline. Further, law enforcement recovered a black backpack at the scene of the fire, which contained two beer cans along with some personal items and paperwork belonging to defendant.

For his part, defendant testified in his defense and denied any involvement in the fire, suggesting that he was...