Opinion
1111 KA 16-00132
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Marvin A. DILLARD, Defendant-Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of arson in the third degree ( Penal Law § 150.10[1] ), defendant challenges the legal sufficiency and weight of the evidence. Contrary to the contention of the People, we conclude that, under the circumstances of this case, defendant did not waive his challenge to the legal sufficiency of the evidence of arson in the third degree. Here, prior to requesting that Supreme Court consider that lesser included offense, defendant unsuccessfully challenged the sufficiency of the evidence of defendant's intent to damage a building, an element of both arson in the second degree (§ 150.15), i.e., the crime for which defendant was indicted, and the lesser included offense (cf. People v. McDuffie , 46 A.D.3d 1385, 1386, 847 N.Y.S.2d 808 [4th Dept. 2007], lv denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 [2008] ; see generally People v. Shaffer , 66 N.Y.2d 663, 664-665, 495 N.Y.S.2d 965, 486 N.E.2d 823 [1985] ). We nonetheless conclude that defendant's contention is without merit. Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that it is legally sufficient to establish that defendant intended to damage the building by starting a fire (see People v. Adams , 43 A.D.3d 1423, 1424, 842 N.Y.S.2d 848 [4th Dept. 2007], lv denied 9 N.Y.3d 1004, 850 N.Y.S.2d 392, 880 N.E.2d 878 [2007] ; People v. Utsey , 182 A.D.2d 575, 575-576, 582 N.Y.S.2d 433 [1st Dept. 1992], lv denied 80 N.Y.2d 839, 587 N.Y.S.2d 923, 600 N.E.2d 650 [1992] ; People v. Ames , 159 A.D.2d 1008, 1009, 552 N.Y.S.2d 735 [4th Dept. 1990] ). "Intent may be inferred from the act itself, from a defendant's conduct and statements, and from the surrounding circumstances" ( People v. Hodges , 66 A.D.3d 1228, 1230, 888 N.Y.S.2d 224 [3d Dept. 2009], lv denied 13 N.Y.3d 939, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010] ). The evidence established that defendant splashed a small amount of gasoline on the front steps of a house belonging to someone with whom he was angry, he threw a lighted match onto the stairs and watched it ignite, and he told the police that he did so to "make a statement" to the owner. Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not against the weight of the evidence (see People v. Newton , 164 A.D.3d 1636, 1636-1637, 84 N.Y.S.3d 288 [4th Dept. 2018] ; People v. Dale , 71 A.D.3d 1517, 1517, 897 N.Y.S.2d 367 [4th Dept. 2010], lv denied 15 N.Y.3d 749, 906 N.Y.S.2d 821, 933 N.E.2d 220 [2010], reconsideration denied 15 N.Y.3d 803, 908 N.Y.S.2d 163, 934 N.E.2d 897 [2010] ; Ames , 159 A.D.2d at 1009, 552 N.Y.S.2d 735 ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).