State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 5, 2015 106118 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ARMANDO LIND,

Appellant.

________________________________

Calendar Date: September 9, 2015

Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.

__________

Jack H. Weiner, Chatham, for appellant.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the Supreme Court (Breslin, J.),

rendered July 10, 2013 in Albany County, upon a verdict

convicting defendant of the crimes of attempted arson in the

second degree and endangering the welfare of a child (two

counts).

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, including

defendant's two young grandchildren, were in the residence at the

time. Defendant was charged with attempted arson in the second

degree and two counts of endangering the welfare of a child. 

Following a jury trial, he was convicted as charged and sentenced

to a prison term of seven years followed by five years of
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postrelease supervision on the attempted arson conviction, and

concurrent terms of one year each on the convictions for

endangering the welfare of a child. Defendant appeals.

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];
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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 crossexamine 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
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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. 

Defendant's son testified for the People as a hostile

witness pursuant to a material witness warrant, stating that when

the son awoke on the morning of the incident, he heard defendant

arguing with defendant's daughter and telling her to get out of

the house. He acknowledged that he placed the 911 call, but

offered testimony that otherwise conflicted with the statements

made in the course of that call. For example, the son testified

that he did not see defendant pour the gasoline and did not know

that any gasoline had been poured; however, he had told the 911

dispatcher that "[defendant] poured it in one room and I left the

room. I took the kid and got out of the room." In his

testimony, the son made other statements that essentially

attempted to minimize his concern and rebut the inferences that

might be drawn from the recording relative to the severity of the

situation and his perceptions of the danger.

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 Penal Law

§§ 150.15, 110.00, 260.10; People v Adams, 222 AD2d 1124, 1124

[1995], lv denied 87 NY2d 1016 [1996]; People v Clemmons, 173

AD2d 723, 723 [1991], lv denied 78 NY2d 964 [1991]). The

contradictions between the son's trial testimony and his

statements on the 911 recording presented credibility issues for

the jury to resolve and, according the appropriate deference to

these assessments, we find that the verdict is in accord with the

weight of the evidence (see People v Abare, 86 AD3d 803, 804

[2011], lv denied 19 NY3d 861 [2012]; People v Nesbitt, 69 AD3d
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1109, 1111-1112 [2010], lv denied 14 NY3d 843 [2010]).1

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

asserting his right to trial, and the record contains no evidence

of retribution or vindictiveness (see People v Fletcher, 309 AD2d

1085, 1086 [2003], lv denied 1 NY3d 571 [2003]). After

considering defendant's family obligations and the many letters

submitted by his friends and relatives attesting to his good

character, Supreme Court imposed a considerably shorter sentence

than the potential 15-year maximum (see Penal Law §§ 70.02 [3]

[b]; 110.05 [4]; 150.15). In view of the nature of defendant's

offenses and his criminal history, we find no abuse of discretion

or extraordinary circumstances warranting a modification in the

interest of justice (see People v Nesbitt, 69 AD3d at 1112-1113;

People v Krug, 282 AD2d 874, 880 [2001], lv denied 98 NY2d 652

[2002]). 

Peters, P.J., Lahtinen and Rose, JJ., concur.

1 Defendant argues that the People failed to support one of

his convictions for endangering the welfare of a child with proof

of the younger grandchild's date of birth. This contention was

unpreserved, but we necessarily examine the sufficiency of the

elements of each charged crime as part of our review of the

weight of the evidence (see People v Danielson, 9 NY3d 342, 348-

349 [2007]). The testimony established that the grandchild was

no more than two years old at the time of the incident (see Penal

Law § 260.10 [1]).
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court