PEOPLE v. CHAMPION (1998)

Following a jury trial, defendant was convicted of arson in the third degree (Penal Law § 150.10[1] ), criminal mischief in the second degree (Penal Law § 145.10) and criminal contempt in the second degree (Penal Law § 215.50 [3] ) for setting fire to a house owned by his father-in-law in which defendant had been living until his wife had asked him to leave.

 Defendant contends that Supreme Court erred in permitting a fire investigator to testify that “some human person ignited those fires”.   We agree.   An expert may testify that, in the course of an investigation, he ruled out certain causes of a fire (see, People v. Luckerson, 170 A.D.2d 695, 567 N.Y.S.2d 110, lv. denied 77 N.Y.2d 997, 571 N.Y.S.2d 923, 575 N.E.2d 409;  People v. Herrera, 136 A.D.2d 567, 523 N.Y.S.2d 562, lv. denied 70 N.Y.2d 1007, 526 N.Y.S.2d 941, 521 N.E.2d 1084) but may not invade the jury's province by testifying that the fire was intentionally set (see, People v. Grutz, 212 N.Y. 72, 81-82, 105 N.E. 843;  People v. Avellanet, 242 A.D.2d 865, 662 N.Y.S.2d 345;  People v. Capobianco, 176 A.D.2d 815, 816, 575 N.Y.S.2d 140, lv. denied 79 N.Y.2d 825, 580 N.Y.S.2d 205, 588 N.E.2d 103;  People v. Vincek, 75 A.D.2d 412, 416, 429 N.Y.S.2d 928).  Defendant, however, failed to object to such testimony and thus failed to preserve the issue for our review (see, CPL 470.05[2] ).  In any event, the error is harmless.   The proof of defendant's guilt is overwhelming, and there is no significant probability that, absent the error, the jury would have acquitted defendant (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Avellanet, supra ).

From our review of the record, we conclude that the evidence is legally sufficient and that the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's sentence is neither unduly harsh nor severe.   We have reviewed the other issues raised and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: