PEOPLE v. SMITH (2018)

Judgment, Supreme Court, Bronx County (Ralph A. Fabrizio, J.), rendered August 4, 2016, convicting defendant, after a jury trial, of reckless endangerment in the first degree, and sentencing him, as a second felony offender, to a term of 31/212 to 7 years, unanimously affirmed.

Defendant's legal sufficiency claim is unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  The fact that defendant was acquitted of arson but convicted of reckless endangerment relating to the multiple fires in his apartment does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).  Defendant's conduct supported the inference that he acted with depraved indifference to whether other residents of his building would die as a result of these fires (see People v. Barboni, 21 N.Y.3d 393, 400–402, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ).

The court properly denied defendant's request for an intoxication charge.  The evidence, viewed in the light most favorable to defendant, was insufficient to allow a reasonable person to entertain a doubt as to whether defendant was so intoxicated at the time of the fires as to negate the mental state of depraved indifference (see People v. Sirico, 17 N.Y.3d 744, 746, 929 N.Y.S.2d 14, 952 N.E.2d 1006 [2011];  People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994] ).

The court providently exercised its discretion in admitting into evidence video recordings obtained from surveillance cameras located inside defendant's apartment building, because witnesses provided sufficient authentication under the circumstances (see People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999];  People v. McEachern, 148 A.D.3d 565, 566, 50 N.Y.S.3d 59 [1st Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017] ).

Defendant was not deprived of his right to present a defense (see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ) by the court's preclusion of evidence relating to a fire that occurred the day after the events for which defendant was charged.  Defendant's theory that this evidence tended to show that the additional fire occurred spontaneously, and that the charged fires, in turn, also occurred spontaneously rather than being set by defendant, was entirely speculative, and the court providently exercised its discretion in excluding it (see People v. Powell, 27 N.Y.3d 523, 531, 35 N.Y.S.3d 675, 55 N.E.3d 435 [2016];  People v. Primo, 96 N.Y.2d 351, 357, 728 N.Y.S.2d 735, 753 N.E.2d 164 [2001] ).

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.  In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We perceive no basis for reducing the sentence.