Opinion
January 29, 1985
Appeal from the Yates County Court, Dugan, J.
Present — Hancock, Jr., J.P., Denman, Boomer, Green and O'Donnell, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction for arson in the third degree (Penal Law, § 150.10) following a nonjury trial, defendant contends that the evidence was legally insufficient to sustain the verdict and that the trial court erred in not treating a key prosecution witness as an accomplice. We disagree.
The evidence, viewed in a light most favorable to the People ( People v. Kennedy, 47 N.Y.2d 196, 203), established that defendant had a motive and an opportunity to set the fire. Defendant previously owned the property which was damaged by the fire and believed that the present owner to whom he sold the property did not pay him enough money for it. The evidence established that he had his sister-in-law drive him to within one-half mile to a mile from the property and told her to keep the engine running; he returned in 10-15 minutes breathing hard and said "let's get out of here"; he took the wheel and drove away at a fast rate of speed. Moreover, expert testimony excluded natural causes of the fire and established from the location and intensity of the fire that at least five pounds of an accelerant was used. Considering all the facts and circumstances, the evidence established defendant's guilt beyond a reasonable doubt and excluded to a moral certainty every reasonable hypothesis of defendant's innocence (see People v. Hoppe, 89 A.D.2d 670; People v. Anderson, 80 A.D.2d 33; People v. Feuerstein, 74 A.D.2d 853; cf. People v. Piazza, 48 N.Y.2d 151).
The court properly denied defendant's application to treat a key prosecution witness as an accomplice. The fact that the witness accompanied defendant to within one-half mile to a mile of the subject property is insufficient to make her an accomplice (see People v. Santana, 82 A.D.2d 784, affd 55 N.Y.2d 673). There was no evidence that the witness knew of defendant's intent or shared in it (CPL 60.22, subd 2, par [a]; see, also, People v Scalise, 70 A.D.2d 346, 348-349).