THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ARMANDO LIND, Appellant.
Supreme Court, Appellate Division, Third Department, New York
[18 NYS3d 786]
After an altercation with his adult daughter, defendant doused a bedroom in his home with gasoline and threatened to burn the house down. Several members of defendant’s family,
Defendant contends that a recording of a 911 call made by his adult son should not have been admitted into evidence and, further, that in the absence of the recording, his convictions were not supported by legally sufficient evidence and were against the weight of the evidence. We disagree. A 911 dispatcher testified that he received a call on the morning of the incident from a “very excited” male caller who reported the location and nature of the emergency but did not provide his name. The dispatcher confirmed that he had listened to the recording of this conversation before the trial and that it was fair, accurate and unaltered. The People sought to admit the recording based upon this testimony; defendant objected, and Supreme Court reserved judgment. A police officer then testified that he responded to defendant’s address after the dispatching center informed him that a 911 caller had reported that gasoline had been poured inside a residence at that address and a subject had threatened to burn the house down. The court allowed this testimony for the limited purpose of explaining the actions taken by the officer and not for its truth, and so advised the jury. The officer then testified that he listened to the recording of the 911 call after the incident and recognized the caller’s voice as that of defendant’s son, with whom he had had numerous contacts. Following this testimony, the court admitted the recording into evidence, over defendant’s renewed objection, and permitted the People to play it for the jury. On the recording, agitated voices, including those of children, can be heard in the background as the caller reports that his father threatened to burn the house down and poured gasoline in a bedroom.
Contrary to defendant’s various contentions upon appeal, we find no error in Supreme Court’s determination on this issue. The testimony of the officer and dispatcher, taken together, provided the requisite foundation, consisting of “proof of the accuracy or authenticity of the tape by clear and convincing evidence establishing that the offered evidence is genuine and that there has been no tampering with it” (People v Ely, 68 NY2d 520, 527 [1986] [internal quotation marks and citation omitted]; accord People v Bell, 5 AD3d 858, 861 [2004]). Moreover, when defendant’s son testified after the tape was admitted, he acknowledged that he had called 911 and that the voice on the recording was his. The recording was admissible as an excited utterance, as the evidence established that it was “made under the stress of excitement caused by an external event, and [was] not the product of studied reflection and possible fabrication” (People v Johnson, 1 NY3d 302, 306 [2003]; accord People v Haskins, 121 AD3d 1181, 1183 [2014], lv denied 24 NY3d 1120 [2015]; see People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]). Defendant’s confrontation rights were not violated, as defendant had the opportunity to cross-examine the son when he testified (see Crawford v Washington, 541 US 36, 59 [2004]). Further, the call—made for the purpose of obtaining an emergency response—was nontestimonial (see People v Warren, 124 AD3d 699, 701 [2015]; People v Anderson, 114 AD3d 1083, 1085 [2014], lv denied 22 NY3d 1196 [2014]).
As for the legal sufficiency and weight of the evidence, a neighbor testified that she heard “screaming and yelling” from defendant’s home and saw defendant leave the house, go into the backyard where a shed was located, and reenter the house carrying two red gasoline cans. Thereafter, according to the neighbor, “[t]here was a lot of jumping and noise and even the garage door was, like, moving.” The neighbor then saw defendant’s adult daughter emerge from the house, gagging, coughing and carrying a baby. The police officer who responded to the 911 call testified that, as he approached defendant’s residence, he was able to smell gasoline from 100 to 150 feet away. Defendant was in front of the house, smoking a cigarette, and attempted to enter the residence when he saw the officer, but stopped when commanded to do so. Defendant’s wife, daughter, son and two grandchildren were indoors, where the odor of gasoline was so strong that the officer moved the family outside. A fire department lieutenant testified that he could smell gasoline outside defendant’s residence and that the smell was strongest inside an upstairs room that appeared to be a child’s bedroom, where the walls were spattered and pools of gasoline were visible on the carpet. Readings from the lieutenant’s air quality meter revealed 200 parts per million of gasoline in the air of this room, a level known to cause coughing and eye and throat irritation and capable of causing ignition from sparks or other sources in nearby rooms. The lieutenant remediated the hazard by ventilating the house with fans, a process that took approximately two hours.
The trial testimony and evidence, taken as a whole and viewed in the light most favorable to the People, provided a valid line of reasoning from which the jury could have found that defendant intended to commit the crime of arson in the second degree—as evidenced by his threat to burn the house down—that he engaged in conduct tending to effect the commission of the crime by pouring gasoline indoors, and that he did so while two minor children were in the house. Accordingly, the evidence was legally sufficient to support his convictions (see
Finally, we reject defendant’s contention that his sentence is unduly harsh. The fact that the sentence is longer than one offered by the People during pretrial plea negotiations, without more, does not demonstrate that defendant was punished for
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment is affirmed.