PEOPLE v. BROWN

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Kathleen BROWN, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, PERADOTTO, AND GREEN, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

 Defendant appeals from a judgment convicting her upon a jury verdict of arson in the second degree (Penal Law § 150.15) and assault in the second degree (§ 120.05[6] ), based upon evidence presented at trial that she started a fire in her apartment after receiving an eviction notice.   Defendant failed to preserve for our review her contention that County Court erred in ordering and admitting in evidence the videotaped conditional examination of a witness (see People v. Ponder, 266 A.D.2d 826, 827, 701 N.Y.S.2d 189, lv. denied 94 N.Y.2d 924, 708 N.Y.S.2d 363, 729 N.E.2d 1162, 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868;  see also People v. Young, 298 A.D.2d 952, 748 N.Y.S.2d 108, lv. denied 99 N.Y.2d 566, 754 N.Y.S.2d 219, 784 N.E.2d 92;  People v. Dixon, 221 A.D.2d 952, 634 N.Y.S.2d 313, lv. denied 87 N.Y.2d 972, 642 N.Y.S.2d 201, 664 N.E.2d 1264, cert. denied 519 U.S. 842, 117 S.Ct. 122, 136 L.Ed.2d 73).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see Ponder, 266 A.D.2d at 827, 701 N.Y.S.2d 189).   Defendant did not object to the opinion testimony of a fire investigator that the fire was intentionally started and thus failed to preserve for our review her contention that the investigator improperly invaded the province of the jury by so testifying (see People v. Pierre, 37 A.D.3d 1172, 829 N.Y.S.2d 386, lv. denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668;  People v. Tutt, 305 A.D.2d 987, 758 N.Y.S.2d 570, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491).   Moreover, defendant waived that contention by eliciting similar testimony from the fire investigator on cross-examination (see People v. Grant, 54 A.D.3d 967, 864 N.Y.S.2d 134;  People v. Bryan, 50 A.D.3d 1049, 1050-1051, 856 N.Y.S.2d 227, lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 612, 896 N.E.2d 98;  People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661).   In any event, we conclude that any error in the admission of that testimony is harmless inasmuch as the remaining evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant otherwise would have been acquitted (see People v. Narrod, 23 A.D.3d 1061, 804 N.Y.S.2d 190, lv. denied 6 N.Y.3d 816, 812 N.Y.S.2d 455, 845 N.E.2d 1286;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 We reject the contention of defendant that the court abused its discretion in admitting evidence that she previously damaged another apartment after receiving an eviction notice from the landlord of that apartment.   That evidence was admissible to establish intent and the absence of mistake or accident, particularly in view of defendant's theory at trial that the fire was the result of an accident and was not intentionally started (see People v. Guiteau, 267 A.D.2d 1094, 701 N.Y.S.2d 230, lv. denied 94 N.Y.2d 920, 708 N.Y.S.2d 359, 729 N.E.2d 1158;  see generally People v. Molineux, 168 N.Y. 264, 293-294, 61 N.E. 286).   Also contrary to defendant's contentions, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.   We have examined defendant's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: