PEOPLE v. SIDBURY (2022)

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered October 15, 2018, convicting defendant, after a jury trial, of arson in the second degree, and sentencing him, as a second violent felony offender, to a term of 25 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 10 years, and otherwise affirmed.

The verdict was based on legally sufficient evidence and 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 evidence established that defendant intentionally caused damage to a building by setting a fire in the cuffing port in the door of his jail cell and damaging that part of the door (see People v. Dixon, 19 A.D.3d 131, 795 N.Y.S.2d 587 [1st Dept. 2005], lv denied 5 N.Y.3d 827, 804 N.Y.S.2d 42, 837 N.E.2d 741 [2005]).  It is undisputed that a door is part of a building for purposes of the arson statutes.  Among other things, a cuffing port permits objects to be transferred in and out of a cell.  The record establishes that rather than being a separate container, this device was a built-in, integral part of the door;  removing it would leave the door with a large hole that would render the door unsuitable for use.  The evidence, viewed in light of the permissible inference of intent to cause the natural and probable consequences of one's acts (see People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980]), also supports the conclusion that defendant intended to damage the building.

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it is based on a matter outside the record regarding counsel's strategy in choosing not to request submission of fourth-degree arson (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, because defendant has not made a CPL 440.10 motion, the merits of this ineffectiveness claim 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]).  Reasonable strategic concerns would support counsel's decision not to request submission of that lesser included offense.

The court providently exercised its discretion in precluding defendant from raising a psychiatric defense, because his CPL 250.10(2) notice was both grossly untimely and lacking any showing that the proffered psychiatric expert testimony would be relevant to a particular defense (see People v. Silburn, 31 N.Y.3d 144, 161, 74 N.Y.S.3d 781, 98 N.E.3d 696 [2018];  People v. Almonor, 93 N.Y.2d 571, 693 N.Y.S.2d 861, 715 N.E.2d 1054 [1999];  People v. Washington, 171 A.D.3d 458, 459, 97 N.Y.S.3d 116 [1st Dept. 2019], lv denied 34 N.Y.3d 939, 109 N.Y.S.3d 735, 133 N.E.3d 439 [2019]).  We find no violation of defendant's right to call witnesses (compare e. g. Ronson v. Commissioner of Corr. of State of N.Y., 604 F.2d 176 [2d Cir. 1979]).  The notice was served years after the time to do so had expired, with no excuse offered except law office failure.  Defendant had been represented by the same institutional provider during that period, and two article 730 examinations had been conducted, which would have alerted counsel to potential psychiatric issues.  Further, the notice did not “contain enough information to enable the prosecution and the court to discern the general nature of the alleged psychiatric malady and its relationship to a particular, proffered defense” (Almonor, 93 N.Y.2d at 581, 693 N.Y.S.2d 861, 715 N.E.2d 1054).  Additionally, the results of defendant's 730 examinations, his behavior in the courtroom, and his history of dilatory tactics supported the court's conclusion that defendant was malingering and had no valid psychiatric defense.  In the alternative, we find that any constitutional or nonconstitutional error in precluding defendant from raising a psychiatric defense had no reasonable possibility of contributing to the verdict.

We find the sentence excessive to the extent indicated, but decline to direct that it be served concurrently with a sentence imposed on another case.