People v Fleury

[*1] People v Fleury 2009 NY Slip Op 50160(U) [22 Misc 3d 1117(A)] Decided on January 23, 2009 Essex County Ct Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2009
Essex County Ct

The People of the State of New York,

against

Darren Fleury, Defendant



08-071-I



Julie A. Garcia, Esq., Essex County District Attorney, (Brian W. Felton, Esq., of counsel), Elizabethtown, New York.

Livingston L. Hatch, Esq., Essex County Public Defender, Elizabethtown, New York, for the defendant.

Richard B. Meyer, J.

Pretrial motion (CPL §255.10) by the defendant for relief in the nature of dismissal or reduction of an indictment, granting discovery and/or a bill of particulars, preclusion and/or suppression of evidence, and other relief.

The defendant is charged by a two-count indictment, filed on September 23, 2008, with having committed the crimes of arson in the fourth degree (Penal Law §150.05), a class E felony, [*2]and reckless endangerment in the second degree (Penal Law §120.20), a class A misdemeanor. The charges arise out of an incident alleged to have occurred in the Town of Ticonderoga, Essex County. The indictment alleges that during the late evening hours of March 15, 2008 and the early morning hours of March 16, 2008, when the defendant and his wife were in their residence, he intentionally lit a piece of paper towel and tossed it in the air, resulting in the burning towel landing on the rug from which there was a subsequent fire damaging the residence.

The defendant moves to dismiss the indictment on the grounds that (1) the indictment is defective (CPL §210.20[1][a], §210.25), (2) the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense (CPL §210.20[1][b], §210.30), and (3) the grand jury proceeding was defective (CPL §210.20[1][c], §210.35). The defendant also moves to inspect the grand jury minutes (CPL §210.30), to preclude and suppress statements and for rulings on the use of defendant's prior criminal history and uncharged bad acts.

The defendant's motion to inspect the grand jury minutes is granted and, for the reasons that follow, the motion to dismiss for insufficient evidence is granted.

Testifying before the grand jury were the defendant's wife, Jacqueline Fleury (Fleury), Ticonderoga Police Department Investigator Daniel LaFrance (LaFrance), Ticonderoga Police Officer Dale Quesnel (Quesnel), and Patrick Bernard Dougan (Dougan), an independent fire analyst. Fleury testified that on March 15-16, 2008 she was residing with the defendant at the parties' marital residence at 48 Cossey Street in the Town of Ticonderoga, Essex County. Fleury said that she and the defendant had been fighting most of the day, beginning after the defendant, who she claimed is an alcoholic, started drinking around 2:00 p.m. Although she testified that the defendant smokes cigarettes "one right after another" she did not "even see a cigarette" during the events in question. She told the grand jury that they were fighting throughout the day about his consumption of alcohol, particularly after he sold the lawn tractor to a neighbor so that the defendant could purchase a bottle of Captain Morgan. Fleury claimed she did not drink at all.

Later in the evening, at approximately 11:00 p.m. or midnight, the defendant passed out and she went to bed. At that time, the defendant had consumed all of the beer and almost all of the Captain Morgan. She awoke approximately an hour to an hour and a half later because the defendant came upstairs "bitching and chewing". She got out of bed and they screamed and argued with each other. The defendant threw the phone at her, and they continued to argue as they went back downstairs inside the residence. Fleury testified that the defendant "threatened to burn the house down and kill me with it and stuff". She admitted that they threatened to kill each other all night. At the time of the threat, the defendant was in the living room standing up and drinking "Captain Morgan with Sprite or something". The defendant smashed some burnt-out (unlit) tea light candles. Suddenly she saw a paper towel "fly out on fire" and she "watched it burn on the scattered rug for a few minutes, thinking he is going to put it out". Fleury kicked the burning paper towel, causing it to strike the defendant in his knee. She told the grand jury that the defendant "brushed it off" and that she then "doused it out with his beer on the floor" and stomped it out with her foot. As she was doing this, the defendant said nothing. They continued arguing for approximately 15 minutes, after [*3]which she left the house, which was between 1:00 and 3:00 a.m. She did not return to the residence until around 4:30 p.m. after being told by a friend in the Wal-Mart parking lot that her house had burned down.

Quesnel responded to a report of a structure fire at the Fleury residence. When he arrived, the house was fully involved in flames and the defendant was walking around outside screaming for his pets. The flames were 10 feet in the air coming out of the house on at least three sides. Quesnel knew the defendant and told him to get back. The defendant was concerned about his pets. Quesnel asked him if anybody else was in the fire and the defendant said no. Upon asking the defendant where his wife was, the defendant said he did not know and then proceeded to tell Quesnel about the argument the night before and that she had left the house. This conversation occurred at approximately 4:30 a.m., and Quesnel described the defendant as being "highly intoxicated" based upon the defendant's "motions, his slurred speech and the very, very strong smell of an odor of alcohol". The defendant was fully dressed and was dirty.

LaFrance testified that he first learned of the incident at approximately 5:00 or 6:00 a.m. on March 16, 2008 when Quesnel called him to respond to the defendant's residence "for a suspicious fire". Quesnel told him that the defendant was acting suspicious in "not knowing where his wife was" and because of his attitude at the scene. When LaFrance arrived, firefighters were attempting to locate Fleury, believing that she was still in the structure. The defendant was standing on the side of the road. LaFrance spoke to the defendant and asked him to go back to his vehicle so he could obtain a supporting deposition from him. The defendant was wearing a jacket and a hat, and "he appeared intoxicated". LaFrance also described him as "obviously panicked" because he could not find the cats, mentioning that fact a number of times. LaFrance asked him where his wife was, and the defendant told him that he had no idea and that she had left earlier in the night and he did not know if she was in the house or not.

LaFrance took a supporting deposition at approximately 6:09 a.m. while the defendant was in LaFrance's parked vehicle. He did not place the defendant under arrest, nor force him into the vehicle or to give the statement. After taking the deposition from the defendant, LaFrance read him the portion of the statement regarding the consequences of making a false statement. LaFrance also advised him that the investigation was ongoing and recommended that the defendant go to the hospital. Two days later the defendant contacted the dispatcher and LaFrance returned the call. The defendant later appeared at the station with Fleury and told LaFrance that he does not recall any of the events involving lighting paper towels, her kicking them at him, or her leaving the house after pouring beer on the towels.

Patrick Bernard Dougan is a fire analyst with New England Fire Cause and Origin, with headquarters in Rochester, New Hampshire. Dougan is assigned to an area of New York State from Kingston to the Canadian border and to Buffalo. He had previously been employed as a deputy fire chief for the city of Schenectady for ten years, and was a member of that department for thirty-three years. He is a level two fire investigator for the State of New York and also a fire and explosion investigator certified by the National Association of Fire Investigators. Dougan was first contacted [*4]on March 27, 2008 by an attorney, Erick Kirker, who represented Encompass Insurance, the insurer of the marital residence. That same day, he went to the scene and observed the still standing residence that had severe damage from a "major fire".

Dougan told the grand jury that the electrical panel and wiring were not the cause of the fire, and that the fire did not start on the deck of the front porch. He determined that the fire originated inside the home near the front of the house. He determined that the fire's point of origin was at the bottom of the rear living room wall near a vent register and the doorway to the kitchen. The fire did not start on the couch, based upon the burn patterns, or in any of the outlets on that wall. He did not observe any candles or other items in the area. It was his opinion that the fire started in some papers piled on the floor in front of the couch and under an end table. Fleury had told them that she piled medical bills and mail in that location. He could not eliminate the lit paper towel as being a cause of the fire, and in his conversation with Fleury she stated that when the lit paper towel fell on the carpet it started "to profusely burn". He also testified that Fleury told him that when she kicked the towel it "splattered into pieces and the biggest portion landed on Mr. Fleury's leg". He testified that there is no way of knowing where every one of the embers traveled to.

Dougan also advised the grand jury that Fleury told him that the defendant lit more than one piece of paper towel. The first time he was sitting on the left side of the couch and she saw a lit paper towel come "floating past the door of the kitchen". Fleury told him that she went out into the living room and the defendant lit another piece of paper towel. After that piece had fallen to the floor, she kicked it causing it to splatter and the largest piece land on his knee. She then poured beer on the largest burning piece. Dougan admitted that the cause of the fire could be that a small ember fell which she did not put out with the beer on the carpet, and that this ember landed on the mail piled on the floor under the end table.

The court has reviewed the grand jury minutes to determine whether sufficient evidence was presented to support each and every count in the indictment. "[A]n indictment is presumed to be based on legal and sufficient evidence" (People v. Bergerson, 17 NY2d 398, 402, 218 NE2d 288, 290, 271 NYS2d 236, 238; see also People v. Howell, 3 NY2d 672, 675, 171 NYS2d 801, 803, 148 NE2d 867, 868). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 NY2d 1002, 374 NYS2d 609, 337 NE2d 124; People v. Lott, 104 AD2d 710, 480 NYS2d 597; People v. Delameter, 96 AD2d 629, 464 NYS2d 878), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (People v. Swamp, 84 NY2d 725, 730, 622 NYS2d 472, 474, 646 NE2d 774, 776; People v. Pelchat, 62 NY2d 97, 105, 476 NYS2d 79, 83, 464 NE2d 447, 451; People v. Valles, 62 NY2d 36, 476 NYS2d 50, 464 NE2d 418; People v. Dunleavy, 41 AD2d 717, 341 NYS2d 500, affirmed 33 NY2d 573, 347 NYS2d 448, 301 NE2d 432). "In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt" (People v. Mayo, supra at 1004, 374 NYS2d 609, 337 NE2d 124). "As applied to a case involving wholly circumstantial evidence, this standard limits the reviewing court's inquiry to determining whether the facts, if proven, and the inferences that logically flow from those [*5]facts supply proof of every element of the charged crimes" (People v. Deegan, 69 NY2d 976, 979, 516 NYS2d 651, 652, 509 NE2d 345, 346). "That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference' " (People v. Bello, 92 NY2d 523, 526, 683 NYS2d 168, 170, 705 NE2d 1209, 1211, quoting People v. Deegan, supra ). Also, "all questions as to the quality or weight of the proof should be deferred" (People v. Sabella , 35 NY2d 158, 167, 359 NYS2d 100, 108, 316 NE2d 569, 574-575), and as long as "the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements' " (Id., quoting the Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10).

Both counts of the indictment require sufficient proof that the defendant acted recklessly. According to Penal Law §15.05(3), "[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such a nature that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto".

In determining whether a person acts "recklessly", "it is defendant's perception or nonperception of the risk of harm'" which is controlling" (People v. Licitra, 47 NY2d 554, 559, 419 NYS2d 461, 464, 393 NE2d 456, 460). A defendant who fails "to perceive the substantial and unjustified risk of [injury] inherent in his act . . . is guilty of [criminal negligence] (Penal Law, §125.10). But if he was aware of the . . . risk . . . and acted in disregard of it, he acted recklessly ( Penal Law, s 15.05, subd. 3)" (Id.). "Recklessness, of course, is a higher or more culpable form of negligence (Penal Law, §15.05, subds. 3, 4), and a long distance separates the negligence which renders one criminally liable from that which establishes civil liability' (People v. Rosenheimer, 209 NY 115, 123, 102 NE 530, 533)" (People v. Montanez, 41 NY2d 53, 56, 390 NYS2d 861, 864, 359 NE2d 371, 374).

The circumstantial evidence before the grand jury was legally insufficient to support the charge of reckless arson since proof is required that the defendant "recklessly damage[d] a building . . . by intentionally starting a fire . . ." (Penal Law §120.20). Here, "the facts, if proven, and the inferences that logically flow from those facts" (People v. Deegan, supra ) do not supply proof of that element of arson in the fourth degree. While the evidence was sufficient to establish that the defendant intentionally started a fire by lighting the paper towel, viewing the grand jury evidence in the light most favorable to the People reveals that proof of the element of reckless damage to a building from such act is speculative. Dugan's testimony that the fire may have been caused by a burning towel ember falling unnoticed on mail and papers piled by Fleury on the floor, after she kicked the towel at the defendant, is mere conjecture. So too is any testimony that the fire could have been started by a cigarette since Fleury testified that she did not see the defendant with a cigarette at any time during the events leading to the fire. There is no reasonable view of the grand jury evidence tending to establish that the defendant perceived the risk that fire damage to the [*6]residence would occur as a result of his tossing the burning paper towel into the air, particularly after Fleury's actions to extinguish the towel on the rug. Moreover, Fleury's intervening reckless act of kicking the burning paper towel at the defendant and her reasonable actions of putting the fire out by dousing the towel with beer and stomping it out establish, at best, that the defendant failed to perceive the risk that she would kick the burning paper towel and scatter burning embers capable of igniting other combustible materials in the living room. Such conduct constitutes negligence, not recklessness. The circumstantial evidence upon which the indictment was based, even when viewed in the light most favorable to the prosecution, does not supply proof of the requisite element of reckless damage to property. As there is no lesser included offense which may be charged based upon the underlying facts, the defendant's motion to dismiss count one must be and is granted.

Similarly, count two charging reckless endangerment in the second degree must be and is dismissed. Conviction for this crime requires proof that a defendant "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person" (Penal Law §120.20). There was no testimony by Fleury that the burning paper towel was thrown at her or near enough to her to cause "serious physical injury" "impairment of a person's physical condition which creates a substantial risk of death, or which causes death, or serious and protracted disfigurement, or protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (CJI2d[NY] Penal Law § 120.20; Penal Law §10.10[10]) or to create any fear of such injury on her part.

The defendant's motion to dismiss the indictment for lack of sufficient grand jury evidence is granted, and the indictment is dismissed in its entirety. The Court need not reach any of the remaining claims in the defendant's motion.

SO ORDERED.

ENTER

____________________________________

Richard B. Meyer

J.C.C.