People v. Murray

191 A.D.3d 1324

140 N.Y.S.3d 645

The PEOPLE of the State of New York, Respondent,

v.Christina MURRAY, also Known as Christina McClarty, Defendant-Appellant.

844

KA 17-00108

Supreme Court, Appellate Division, Fourth Department, New York.

February 5, 2021

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of insurance fraud in the third degree ( Penal Law § 176.20 ) and falsifying business records in the first degree (§ 175.10). The case arose from an insurance claim by which defendant attempted to recover the cash value of items of personal property that were ostensibly lost in a house fire. We previously affirmed the judgment convicting defendant's spouse after a separate trial of the same crimes, arising from the same events ( People v. Murray , 185 A.D.3d 1507, 128 N.Y.S.3d 736 [4th Dept. 2020] ).

Contrary to defendant's contention, "the proof is legally sufficient to establish that defendant attempted to wrongfully obtain property valued in excess of $3,000" ( People v. Michael , 210 A.D.2d 874, 874, 620 N.Y.S.2d 637 [4th Dept. 1994], lv denied 84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463 [1995] ; see Penal Law § 176.20 ). The evidence established that defendant claimed $5,000 for a leather sectional on her insurance claim form; however, a receipt indicated that defendant actually bought the sectional for $1,895 in cash. Testimony further established that many of the items that defendant claimed either did not belong to her or were not in the house at the time of the fire. The testimony of defendant's landlord established that he provided the refrigerator, a gas stove, and a top-load washer and dryer, items for which he sought recovery in his own insurance claim. Furthermore, an arson investigator testified that he investigated the cause of the fire and did not see many of the items claimed on the form, particularly a front-load washer and dryer, flat screen televisions, video game systems, a desktop computer, digital cameras, camcorders, and a leather, king-size bedroom set.

Although defendant's challenge to the legal sufficiency of the evidence otherwise is not preserved for our review because her trial order of dismissal was not " ‘specifically directed’ " at the errors alleged ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), " ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see People v. Danielson , 9 N.Y.3d 342, 349-350, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), and according deference to the jury's credibility determinations (see People v. Romero , 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant further contends that Supreme Court abused its discretion in permitting the arson investigator to testify with respect to his conclusion that the fire had been intentionally set inasmuch as the probative value of that testimony was outweighed by its potential for prejudice. We agree.

As a threshold matter, we note that the investigator's testimony that the fire had been intentionally set was irrelevant to prove any of the essential elements of the crimes charged against defendant (see Penal Law §§ 175.10, 176.20 ; see generally People v. Scarola , 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ; People v. McCullough , 117 A.D.3d 1415, 1416, 984 N.Y.S.2d 532 [4th Dept. 2014], lv denied 23 N.Y.3d 1040, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014] ). Even assuming, arguendo, that the challenged testimony was relevant for the reason given by the court, i.e., to complete the narrative regarding the investigation, we agree with defendant that it still should have been excluded at trial. Relevant evidence may be excluded by the trial court if the probative value of the evidence is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury (see Scarola , 71 N.Y.2d at 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 ; People v. Smith , 126 A.D.3d 1528, 1529, 6 N.Y.S.3d 870 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ).

Here, the testimony of the investigator with respect to what items he observed in the house during the investigation was relevant to establish what property was lost in the fire. Thus, the court properly allowed the investigator to testify about his years of experience, his investigatory methods, and the fact that he had to eliminate electronics as a potential cause of the fire in order to determine the fire's actual cause. That information was essential to convey that carefully observing the electronics actually present in the house was an integral part of the investigation, and thus the presence of certain electronic devices in the house was not something that he was likely to have overlooked. Further, the fact that the investigator eliminated electronics as a potential source for the fire was highly probative because it demonstrated that the investigator thoroughly investigated the electronics in the house. However, those critical aspects of the investigator's testimony could have been discussed without referring to his ultimate conclusion that the fire had been intentionally set. In other words, "any holes or ambiguities in the narrative ‘could ... have been easily dealt with by far less prejudicial means’ " ( People v. Garrett , 88 A.D.3d 1253, 1254, 930 N.Y.S.2d 738 [4th Dept. 2011], lv denied 18 N.Y.3d 883, 939 N.Y.S.2d 753, 963 N.E.2d 130 [2012], quoting ...