People v Chase

[*1] People v Chase 2005 NY Slip Op 51125(U) Decided on May 19, 2005 County Court, Washington County Hall, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 19, 2005
County Court, Washington County

THE PEOPLE OF THE STATE OF NEW YORK

against

Jack Chase, Defendant.



I-040-95

John S. Hall, J.

Defendant Jack Chase, (hereinafter "defendant') filed a motion to vacate the judgment pursuant to Article 440 of the Criminal Procedure Law (hereinafter "CPL") on July 20, 2004. The People filed a Reply on October 20, 2004. Defendant filed a Rebuttal on January 3, 2005. Following a hearing held on March 15, 2005, defense counsel filed a closing argument in writing on March 28, 2005. After a grant of a two week adjournment, the People filed a closing argument/ reply to the defendant's motion on April 27, 2005.

History

Defendant Jack Chase, (hereinafter "defendant') was indicted by a Washington County Grand Jury on March 21, 1995, for three counts of the crime of Arson in the Third Degree, in violation of Penal Law §150.10, two counts of the crime of Insurance Fraud in the Second Degree, in violation of Penal Law §176.25, one count of the crime of Insurance Fraud in the Fifth Degree, in violation of Penal Law §176.10, three counts of the crime of Reckless Endangerment in the First Degree, in violation of Penal Law §120.25, and one count of the crime of Burglary in the Second Degree, in violation of Penal Law §140.25. The charges stem from three separate fires: the February 17, 1990 fire (hereinafter, "1990 fire"), at the residence of the defendant on Carvers Falls Road, in the Town of Hampton; the February 8, 1993 fire (hereinafter, "the 1993 fire"), that occurred at the same residence of the defendant; and the January 14, 1994 fire (hereinafter, "the Germain fire"), that occurred at the home of Elmer and Diane Germain, neighbors of the defendant.

Upon review of the Grand Jury minutes as requested by defendant's omnibus motion, the three counts of Reckless Endangerment in the First Degree were dismissed for the People's failure to adequately instruct the Grand Jury on these charges. In addition, a motion to sever the counts was made by defense counsel, which was granted in part by the trial judge, the late Hon. Gordon M. Hemmett, Jr. The trial court severed the counts relating to the Germain fire from the indictment and a trial commenced on the 1990 and 1993 fires in October 1995. Following the presentation of the prosecution's case, the trial court dismissed the count of Arson in the Third Degree and count of Insurance Fraud in the Fifth Degree relating to the 1990 fire. The jury convicted the defendant on two counts of Insurance Fraud in the Second Degree and one court of Arson in the Third Degree. Defendant was sentenced to a term of four (4) to twelve (12) years indeterminate incarceration on [*2]one count of Insurance Fraud in the Second Degree, a consecutive term of five (5) to fifteen (15) years indeterminate incarceration for the count of Arson in the Third Degree, and a consecutive term of five (5) to fifteen (15) years indeterminate incarceration for the second count of Insurance Fraud in the Second Degree.

Defendant subsequently entered an Alford plea to attempted burglary in the second degree in full satisfaction of the remaining counts in the indictment pertaining to the Germain fire. The defendant was sentenced to a term of one (1) to three (3) years indeterminate incarceration concurrent to his previous sentence.

An appeal was filed with the Appellate Division, Third Department, and after many delays which will not be discussed here, the Appellate Division affirmed defendant's conviction on the one count of Arson in the Third Degree and the one count of Insurance Fraud in the Second Degree relating to the 1993 fire, and reduced the count of Insurance Fraud in the Second Degree relating to the 1990 fire to Insurance Fraud in the Fifth Degree.[FN1] The Appellate Division also reduced defendant's sentence to ten (10) to twenty (20) years aggregate as a result.

Defendant filed a motion to vacate the judgment and set aside the sentence pursuant to Criminal Procedure Law (hereinafter, "CPL") §440.30.[FN2] Defendant claims many reasons why the judgment should be vacated under various subdivisions listed under §440.10. These grounds will be addressed individually in the decision.

The People oppose the defendant's motion stating that many of the grounds raised could have been raised on direct appeal, were not and are therefore waived. The People also assert that defendant's "newly discovered evidence" was known and could have been raised at trial. Thus, failure to do so constitutes a waiver. The People also contend that the defendant's trial counsel did not provide ineffective assistance, but instead was a seasoned litigator and decisions he made regarding trial tactics were within his realm as a lawyer.

Defendant has filed a rebuttal to the People's response. Defendant points out many factual mistakes the People made in their papers to the Court. Defendant also asserts that claims of ineffective assistance of counsel is more properly addressed to the trial court in the form of a motion pursuant to CPL §440 rather than in direct appeal. Taylor v. Kuhlmann, 36 F. Supp. 2d 534 (E.D.NY, 1999).

Based upon the issues that defendant raised and the papers submitted by both sides, pursuant to CPL §440.30(1), it was determined that some of the issues could not be decided without a hearing. As defendant also requested counsel be assigned, again due to the nature of the arguments presented and the necessity of a hearing, counsel was assigned by this Court via the Washington County Public Defender's Office. A hearing was conducted on March 15, 2005, but was limited to the issues of newly discovered evidence. The Court ruled that the remaining issues raised by the defendant could be determined on papers alone. Pursuant to CPL §440.30(6), "the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion." [*3]

The defendant proffered four witnesses, including an attorney to testify about the effectiveness of counsel's assistance. The Court requested a summary of the facts and conclusions of each. Copies were served on the People who made no objection. The Court denied the defendant the opportunity to present testimony by an attorney. Investigator Edmund Knight was also denied the opportunity to present his testimony due to the cumulativeness and irrelevancy of his proposed testimony. At the hearing, the defendant presented two witnesses who testified via teleconferencing equipment over the objections of the People.[FN3]

Default Judgment Motion

On September 8, 2004, the defendant moved for a default judgment as against the People for failing to serve a timely answer or formally request an extension to serve a late answer. The defendant is not entitled to a default judgment on a motion pursuant to Article 440 of the CPL. People v. Russell, 235 AD2d 364 (1st Dept. 1997). Furthermore, due to the voluminous motion and accompanying exhibits and transcripts, the People's delay in filing an answer was reasonable. Defendant's motion for default judgment is denied.

Defendant's Claims The defendant alleges a violation of CPL §440.10(1)(b) which states: "The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor." CPL §440.10(1)(c) states: "Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false."

Defendant asserts that the prosecutor intentionally offered perjured testimony by allowing Elmer Germain to testify to events that were materially different than those he reported when questioned immediately after the 1993 fire. Defendant also asserts that the prosecution gave Elmer Germain immunity from prosecution for causing or contributing to the fire at his own residence in exchange for testimony against the defendant.

The trial court allowed the defendant to use the conflicting testimony of Mr. Germain on cross-examination to help the jury make a credibility determination based upon the conflicting stories. Defense counsel had ample opportunity to cross-examine the witness. Therefore, defendant's argument is without merit.

Defendant also asserts that the prosecution changed theories of how the alleged arson occurred mid-trial as he heard testimony from Dr. Colangelo, an expert who examined the 100 pound propane tank, yet the prosecutor did not try to remedy his theory or admit to his mistake. The [*4]prosecutions "change" of theory was objected to at the time of trial [Trial Tr. p. 708-711]. Even so, the defendant could have but failed to raise the issue in his appeal, which was possible and reviewable by the transcript alone. Defendant's failure to raise the issue on appeal waives the issue and the Court must deny defendant's motion on this ground pursuant to CPL §440.10(2)(c). See, People v. Barber, 280 AD2d 691 (3d Dept. 2001) lv den 96 NY2d 825 (2001); People v. Jackson, 266 AD2d 163 (1st Dept. 1999). Defendant also alleges a violation of CPL §440.10(1)(d) which states: "Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant's rights under the constitution of this state or of the United States."

Defendant asserts that Investigator David Pollack entered the defendant's home on February 9 and 11, 1993, without a search warrant or defendant's permission, and removed items, including the 100 pound propane tank. It does not appear that the issue was raised at trial nor did the defendant raised this issue on appeal. Defendant's failure to raise the issue on appeal waives the issue and the Court must deny defendant's motion on this ground pursuant to CPL §440.10(2)(c). See, People v. Barber, 280 AD2d 691 (3d Dept. 2001) lv den 96 NY2d 825 (2001); People v. Jackson, 266 AD2d 163 (1st Dept. 1999).

In addition, defendant asserts that the tape recording of a telephone conversation between the defendant and Francis Chaplin was destroyed before the trial and after Inv. Pollack personally transcribed the tape.[FN4] Defendant asserts that there should have been a sanction for destroying the tape.

On October 18, 1995, in a chambers conference at which defendant was present, defense counsel objected to two documents presented as Rosario materials relating to the 1990 fire. One document was a statement taken from Francis Chaplin who stated that he assisted the defendant in setting his home on fire in 1990. The other document was a purported transcript of a telephone call between Francis Chaplin and the defendant at the direction of Vermont State Police and Inv. Pollack. The original tape was destroyed prior to trial and was allegedly transcribed by Inv. Pollack. Defense counsel argued that due to the nature of the documents, they should have been turned over as Brady material at an earlier date. Defense counsel argued for a mistrial and a severance of all three fires. The People denied that the documents were Brady material, stated that Francis Chaplin was not charged as a co-defendant, and that Chaplin had not been granted prosecutorial immunity for [*5]testifying at trial.[FN5] The trial court found that the transcript was Brady material, but the failure to disclose the evidence was not willful, and the transcript would not be used at trial. The trial court denied the motion for mistrial and also to sever the 1990 and 1993 fires.

Based upon a review of the questions presented to the Appellate Division, Third Department,[FN6] it appears that these issues were raised on appeal and "found to be unavailing." People v. Chase, supra at 600. As such, defendant's motion relating to these grounds is denied pursuant to CPL §440.10(2)(a). Defendant alleges a violation of CPL §440.10(1)(e) which states: "During the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings."

Defendant asserts that it was error for his defense counsel and also for the court to proceed without ordering an examination of the defendant pursuant to CPL §730. Defendant asserts that his competence was obviously in question due to his behavior before and during the trial. Defendant cites the postponement of his original arraignment due to intoxication and also his erratic middle-of-the-night telephone call to District Attorney Robert M. Winn. Defendant asserts that these actions should have alerted the trial court that the defendant was laboring under some kind of disability and would not be able to assist in his own defense as such.

The presumption is that a defendant is competent to proceed in a criminal prosecution and absent reasons to believe that the defendant is unable to assist in his own defense, a competency examination pursuant to CPL §730 is discretionary by the court. See, People v. Ferrer, ___A.D.2d ___, 2005 Slip Op. 02325 (3d Dept. 2005); see also, People v. Gelikkaya, 84 NY2d 456 (1994). Furthermore, if defense counsel did not feel a competency examination was warranted, it is not ineffective assistance of counsel to fail to request such an examination. See, People v. Barclay, 1 AD3d 705 (3d Dept. 2003). Therefore, defendant's arguments regarding his competency are without merit and dismissed. Defendant alleges a violation of CPL §440.10(1)(f) which states: "Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom."

Defendant does not assert anything in particular that would not occur in the record but would have required reversal. As such, this argument is denied.

[*6]Newly Discovered Evidence With regard to the conviction resulting from the 1993 fire, the defendant correctly claims that his motion is supported by CPL §440.10(1)(g). That section states: "New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence."

The People attempted to prove that the 1993 fire was caused when the defendant allegedly removed a gas hose or otherwise allowed propane gas to escape from a 100 pound propane tank situated in the basement (family room) of a three story house. However, a prosecution witness testified that the fire damage indicated that the origin of the fire was the second or middle floor (kitchen area). [Trial Tr. 661:15-16]. The People attempted to explain this anomaly by advancing the theory that the propane gas was heavier than air, therefore, the propane formed a pool which accumulated much like water in a bathtub until it "spilled" onto the second floor (kitchen area) where it was ignited by the flame of a top-hat heater in use as temporary heat.[FN7] According to the People's proof, this happened approximately fifteen minutes after the defendant allegedly tampered with the tank in the basement and shortly after the defendant left the residence.[FN8]

Defendant has submitted affidavits of three unpaid experts. They assert that there has been newly discovered evidence since the 1995 trial that would disprove the prosecution's theory of arson. Two of these experts were allowed to testify at a hearing held before this Court on March 15, 2005. They testified that recent scientific discoveries regarding the nature of propane made after 1995 which disprove the keystone of the prosecution's proof. Contrary to accepted scientific beliefs held at the time of the trial, when discharged in open air,[FN9] propane does not settle to the floor. It does not act like water in a bathtub. Rather, a jet of propane would immediately and readily mix with the air around it. The air would dilute the gas rendering it non-combustible except in very limited and specific conditions, none of which were proven at the trial. Consequently, if the 100 pound tank had been tampered with by the defendant, it would take several hours to create a combustible mixture and if it did, it would have created such a powerful explosion that the roof and walls would have been annihilated.

Furthermore, defendant's experts testified that since the 1995 trial, the Consumer Products [*7]Safety Commission instituted a recall for portable 20 pound tanks made prior to 1995. The defective tanks, such as the 20 pound tanks located in the defendant's home at the time of the fire, were prone to rupture if unintentionally overfilled while cold, then warmed. The propane would expand causing a boiling liquid expanding vapor explosion (hereinafter, "BLEVE").[3/15/05 Tr. 72:14-25]. Defendant's experts conclude that the conditions at the scene of the 1993 fire were consistent with a BLEVE.[FN10]

Dr. Lyle Albright, a Ph.D. in chemical engineering and Professor of Chemical Engineering Emeritus, testified from Purdue University in Indiana at the March 15, 2005, hearing via videoconferencing [FN11] regarding newly discovered evidence since the 1995 trial. Much of Dr. Albright's testimony was stricken upon objection by the People. However, Dr. Albright was allowed to testify that since the 1995 trial date, there has been significant research on propane gas and as a result many improvements in the handling of propane and safety regulations had been developed. [03/15/05 Tr. 51:5-20]. The Court has reviewed the affidavit prepared by Dr. Albright and submitted with defendant's original moving papers.

Dr. Gerald Hurst, a Ph.D. in Chemistry, testified from Austin, Texas, at the March 15, 2005, hearing via videoconferencing [FN12] regarding new information about propane since the 1995 trial. Dr. Hurst was qualified as an expert in Thermo Chemistry and cryogenic gases, such as propane and the physics of fire and combustion. He is a consultant in cause and origin of fires and explosions, and teaches fire investigation to attorneys. He discussed two specific discoveries which the defendant contends are newly discovered evidence.

First of all, the Consumer Products Safety Commission issued a safety recall in 2002 of 20 pound propane tanks of the type utilized in the defendant's home during the 1993 fire.[03/15/05 Tr. 67:12-17]. Dr. Hurst explained that propane tanks made prior to 1995 did not have an overfill protection device. Therefore, when those propane tanks were filled when cold, then allowed to warm [*8]up, the propane gas would expand and could cause a rupture of the tank "with an ensuing fire or explosion" or otherwise known as boiling liquid (expanding)[FN13] vapor explosion, i.e. "BLEVE" [03/15/05 Tr. 67:19-24; 72:14-16]. Dr. Hurst further explained that when a BLEVE occurs, the force of the explosion would cause the valve of the tank and the building's windows to blow out, such as described by the witnesses at the trial. [03/15/05 Tr. 72:16-20]. Dr. Hurst pointed to photos introduced at the trial of two of the 20 pound propane tanks that were recovered on the 1993 fire scene. He noted that both had blown out the valve stems, indicating "abnormal behavior," such as BLEVE, from which he concludes that "there was something wrong with the tank." [03/15/05 Tr. 89:8-12]

Secondly, Dr. Hurst explained that at the time of the trial, the extent of scientific knowledge regarding propane required that fire investigators be "taught that propane, being denser than air when it issued from a propane tank, would settle to the floor and build up in a two-phase layer" [03/15/05 Tr. 68:7-11]. The lower layer would consist of propane and the second, upper layer, air. This was the theory proffered by the prosecution's expert witnesses as trial. Subsequent to the trial, scientists discovered that this theory did not accurately describe the properties of propane. "(I)nstead of settling to the floor and becoming too rich, (the propane) would mix uniformly more or less with the air." [03/15/05 Tr. 69:11-15]. Dr. Hurst explained that if the hose had been detached from the 100 pound propane tank as proffered by the prosecution, the propane/air mixture would be too weak to explode for at least an hour and perhaps for as much as 4 1/2 hours, depending on the ventilation in the building. If a spark were introduced during the fifteen minute time period, established at the trial, a torch-like flame, not an explosion would occur. Further, the torch could occur only "if you had a spark about four feet off the floor and located five feet from the tank in midair... it wouldn't burn anything else." [03/15/05 Tr. 100:3-6].

If the spark or flame was closer to the tank, before the air was saturated, the propane mix would be too rich to burn because it would lack sufficient oxygen. If the spark were farther than four feet from the tank, the mixture would be too thin because the propane would have dissipated. Thus, the spark would ignite the propane only at a distance of approximately four feet until at least one hour passed. Furthermore, in direct contradiction to the testimony elicited at trial, Dr. Hurst testified that opening a gas valve and letting propane escape for fifteen minutes [FN14] would not cause an explosion or fire. [03/15/05 Tr. 107:15-19]. Dr. Hurst testified that propane released into the air intentionally in a building such as that involved in the alleged arson would require a minimum of one hour and a maximum of 4.6 hours to reach stoichiometry, the proper air to propane ratio. [03/15/05 Tr. 102:8-19]. Finally, when ignition occurred, such a large amount of propane mixed [*9]with air would detonate with such extreme force that the roof and all walls would be blown out. In other words, it would "blow the house to smitherines (sic)" [3/15/05 Tr. 100:17-18], a condition completely contrary to the proof of the fire (not explosion) adduced at the trial.

While the People argue that the properties of propane have not changed since its discovery, it is clear that scientists now have a better understanding of those properties and how they work [03/15/05 Tr. 97:22-25; 98:1-6]. The new knowledge better explains the cause of the fire. In particular, it explains why the fire damage was primarily limited to the upper floors (where the 20 pound tanks were located) not in the basement where the defendant allegedly tampered with the 100 pound tank.

The Court reserved decision on an objection made by defense counsel during the People's cross-examination of Dr. Hurst. The People raised an issue regarding the possible effect of industrial fans on the dispersion of propane. [03/15/05 Tr. 79:18-25; 80:1-19]. The Court has scoured the trial record and has found no testimony establishing that any industrial "drying" fans were being used to dry the house in the immediate period prior to the 1993 fire. As such, defendant's objection to the line of questioning is sustained.[FN15]

In People's closing argument, it is alleged that the two experts that defendant presented at the March 15, 2005, hearing were incredible, misleading and inaccurate. The People requested an opportunity to present their own witnesses to challenge what they term as "junk science" presented by the defendant's experts. The People's request for an additional hearing is denied.

The defendant's original motion papers included the curriculum vitae for both experts, a summary of the facts and conclusions proffered, and affidavits of these witnesses. The People were on notice well in advance of the hearing as to the defendant's theory of the newly discovered evidence. The People could have, but failed to, offer their own witnesses or affidavits to refute the experts' testimony. Furthermore, the People's closing argument relies on claims dehors the record and makes numerous unsubstantiated claims. The defendant's experts were highly qualified and to which the Court gives substantial credit, especially in light of the People's failure to offer an alternative explanation at the time of the hearing.

It is evident that the tendency of the 20 pound propane tanks to rupture and the discovery that propane gas readily mixes with air was not known until years after the trial. Furthermore, while only a new trial jury can determine the defendant's guilt or innocence, the newly discovered evidence is of such a character as to create a probability of a more favorable verdict. See, CPL §440.10(1)(g). As such, the judgment is vacated and the matter remitted for a new trial.

Ineffective Assistance of Counsel CPL §440.10(1)(h) states: "The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States."

Defendant does not specifically address what constitutional right, but based upon a review of the papers and the thrust of the hearing held on March 15, 2005, the Court understands the complaint to be that defendant was denied effective assistance of counsel from his trial counsel, John [*10]McMahon, Esq.[FN16] Defendant asserts that Attorney McMahon ineffectively represented him by failing to hire an expert to assist him in preparing a defense and/or to testify at trial to rebut the "experts" that the prosecution presented. Defendant further asserts that Attorney McMahon compromised the defense when he introduced a brass regulator at trial as an example of the regulator the prosecution had asserted was the kind of regulator that the defendant purportedly removed. Defendant asserts that this was a fatal flaw in that it was not actually like the regulator that was on the propane tank at the time of the fire, which actually assisted the prosecution with their case. The regulator that Attorney McMahon presented to the jury would have had to been manually removed from the tank, as the prosecution theorized, as opposed to the zinc regulator that apparently melted, as testified to by Dr. Colangelo, the prosecution's witness. [Trial Tr. 190:13-22].

Upon review of the trial transcript and the exhibits provided by the defendant, it does not appear that Attorney McMahon provided a brass regulator, but instead it was a regulator made of white metal, similar to the one that probably melted on the 100 pound propane tank. [Trial Tr. 695:4-10]. There may be some dispute if the regulator provided as a defense exhibit was exactly like the one that was on the 100 pound tank, but even if provided in error, it appears that such provision was harmless error. In addition, Attorney McMahon's decision not to present any expert in metallurgy, arson investigation or other related field, was well within his realm as an experienced trial litigator. Attorney McMahon consulted with an expert, Michael Lane, but chose not to present him as a witness. [Trial Tr. 1126:10-22]. It is clear that Attorney McMahon comprehensively cross-examined each of the prosecution's witnesses and exposed inconsistencies or flaws in their testimony. In light of what was the overwhelming evidence at the time, notwithstanding the newly discovered evidence as described previously, the jury was within its province to make credibility determinations of the individual witnesses. Attorney McMahon's strategy at trial was not ineffective, but instead unsuccessful, as is an inherent risk with any case that goes to trial before a jury. Overall, Attorney McMahon argued strenuously for the defendant and made cogent objections and motions throughout the proceedings. Based upon the foregoing, the defendant's claims of ineffective assistance of counsel is without merit and denied.

CONCLUSIONS

New evidence discovered years after the verdict, which could not have been produced at the trial, creates a probability that a more favorable verdict would have been rendered. The newly discovered evidence pertains only to the 1993 fire. Therefore, the judgment is hereby vacated only as to one count of Arson in the Third Degree and one count of Insurance Fraud in the Second Degree. A new trial is ordered pursuant to CPL §440.10(5)(a).

The foregoing constitutes the Decision and Order of this Court.

Date:______________________________________________________

at Lake George, New York.Hon. John S. Hall, Jr.

Acting Washington County Court Judge [*11] Footnotes

Footnote 1: See People v. Chase, 299 AD2d 597 (3d Dept. 2002).

Footnote 2: The defendant previously made similar motions pursuant to Article 440 of the CPL, however, they were made while the appeal to the Appellate Division was still pending and were dismissed as a result. The substance of those previous 440 motions will not be discussed.

Footnote 3: The Court granted permission for both of these highly qualified and experienced experts to testify via teleconferencing equipment due to their locations in Indiana and Texas, the fact that both experts were working on the matter pro bono, and since counsel was assigned through the public defender's office, the Court did not want to burden the taxpayers of Washington County with funding the trip of both of the experts when technology would allow sufficient opportunity for direct and cross examination by counsel and the Court. In addition, as this was only a hearing, and not a trial in front of a jury, the Court denied the People's objections to the mode of testimony.

Footnote 4: Defendant separately points to the fact that the telephone call was made in violation of a "No Trespass Order" issued in Rutland County, Vermont, on behalf of the defendant and his wife against Francis Chaplin and his wife. Defendant does not indicate if the order was a full stay away order or just away from his person and property. Notwithstanding, if the defendant believed a crime had been committed, his recourse would have been to file a complaint with the police for the violation of a court order. Defendant has not asserted that the police knew of the "No Trespass Order" or that it was even valid at such time the recording was made.

Footnote 5: There was many conferences during the trial regarding the testimony of Francis Chaplin, to which eventually, the trial court dismissed the count of Arson in the Third Degree that related to the 1990 fire after a finding that Chaplin was an accomplice and the People failed to present additional corroborating evidence to substantiate Chaplin's claims. [Trial Tr. 1194:10-18; 1197:19-20].

Footnote 6: Defendant did not provide a copy of his appeal papers to the reviewing court, but the People attached a list of the questions presented as Attachment A-115 & A-116. In the list of questions, #1-8 pertained to the issues raised here.

Footnote 7: See the testimony of Paul Martin, [Trial Tr. p. 832-833; 849:16-24; 850:1-22; 852:12-24].

Footnote 8: The calculation of time is approximate based upon the testimony of Elmer Germain, who was working with the defendant. He testified that in addition to the 100 pound tank in the basement, two top-hat heaters each supplied by a 20 pound propane tank were all in operation at the time he left the residence. These were being used to warm the residence during a frigid period. [Trial Tr. 898:3-24; 899:1-23].

Footnote 9: The new evidence relates to the theory of how propane would disperse if there was a leak from a tank or intentional discharge of propane as a gas.

Footnote 10: The testimony of several witnesses indicated that there were two unused 20 pound propane tanks near the bow window in addition to two tanks attached to top-hat heaters in the kitchen and an upstairs room. [Trial Tr. 736:13-18; 747:11-13; 902:10-24; 903:1]. The fire occurred during a frigid period during February. The tanks were required to be filled outdoors. Therefore, it was likely that the tanks were filled when cold. Due to the rudimentary nature of the temporary heating system, the temperature in the building varied widely. Only two of the four 20 pound tanks were recovered after the fire and both showed evidence that the valves had blown off the top. [Trial Tr. 623:24; 624:2-12; 643:7-10; 644:2-4; 747:23-24; 748:1-4].

Footnote 11: The People objected to the use of videoconferencing for the presentation of this witness as it is not authorized in the Criminal Procedure Law or Penal Law. However, the Court noted the exception for the record and decided to allow the testimony due to the importance of the testimony, the expense of live testimony, the convenience to the witness, and the rather minimal inconvenience to the attorneys. The Court could find no rule or statute directly prohibiting the use of videoconferencing in a motion pursuant to CPL §440.

Footnote 12: The People also objected to the use of videoconferencing for this witness. See the previous footnote.

Footnote 13: While the hearing transcript indicated that Dr. Hurst testified that BLEVE stood for " boiling liquid explosions" [3/15/05 Tr. 72:15], "boiling liquid, boiler vaporization explosion" [Tr. 73:1-2], the Court's notes reflected "boiling liquid explosive vaporization explosion" which appeared incorrect. The People submitted a copy of an undated handbook entitled "Propane Emergencies" which defines the acronym as "boiling liquid expanding vapor explosion." This document confirms that normally if a "leak develops in a gas line or container, propane readily dissipates" except under limited circumstances.

Footnote 14: See footnote 8.

Footnote 15: Ironically, the testimony of Dr. Hurst regarding the effect of an industrial fan on the dispersion of propane, as suggested by the People, would actually make the prosecution's theory of the explosion and resulting fire even more improbable as the propane would be even more dispersed by the air and therefore not flammable for a longer period of time.

Footnote 16: Defendant has asserted a variety of claims that he believes proves Attorney McMahon failed to provide him with effective assistance. However, the majority of these claims are without merit or are unsupported. The arguments presented in the decision are those which have some merit.