Opinion
November 10, 1987
Appeal from the Monroe County Court, Egan, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: On appeal after a jury conviction for third degree arson, defendant argues that the verdict was against the weight of the evidence and was based upon legally insufficient proof. We disagree. The evidence established that defendant leased the building destroyed by the fire and operated it as a tailor and dry-cleaning business. Defendant's brother was seen running from the building immediately after the fire had started. On the day of the fire defendant and his brother moved clothing from the store and filled a gas can found at the scene of the crime. Moreover, defendant doubled his business insurance coverage a month prior to the fire and requested confirmation of the increase less than a week prior to the fire. Thus, on this record, there was proof of defendant's guilt beyond a reasonable doubt (see, People v. Jackson, 65 N.Y.2d 265; People v. Landers, 107 A.D.2d 1022; People v. Sundholm, 105 A.D.2d 1072). The jury verdict is consistent with and flows from the proven facts. The facts as a whole exclude "`to a moral certainty'" every conclusion other than guilt (People v Kennedy, 47 N.Y.2d 196, 202; People v. Benzinger, 36 N.Y.2d 29, 32). We have reviewed defendant's claim of prosecutorial misconduct and find it lacking in merit.