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People v. Alnutt

Supreme Court of New York, Third Department

June 13, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JEFFREY E. ALNUTT, Appellant.

Calendar Date: April 26, 2013

Joseph Nalli, Fort Plain, for appellant, and appellant pro se.

Louise K. Sira, District Attorney, Johnstown, for respondent.

Before: Stein, J.P., Spain, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

(1) Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered August 19, 2010, upon a verdict convicting defendant of the crimes of murder in the second degree, manslaughter in the second degree, arson in the second degree, arson in the third degree and reckless endangerment in the second degree, and (2) motion to take judicial notice of certain documents.

On December 21, 2007, defendant was the owner of various rental properties, including a building located at 22 Park Street in the City of Gloversville, Fulton County. The property in question was a two-unit residential dwelling located on the corner of Park and Burr Streets. The upstairs apartment was occupied by Gary Romaine and his girlfriend, Deborah Morris, and the downstairs apartment was occupied by defendant's girlfriend, Amber Slaybaugh. [1]

Between 10:00 p.m. and 10:30 p.m. that evening, Thomas Houghton, who was smoking a cigarette on his porch at 16 Park Street, saw defendant enter the hallway leading to Romaine and Morris's upstairs apartment. Shortly thereafter, defendant emerged and walked around the front of the residence toward the Burr Street side of the property. At approximately 10:30 p.m., Nancy Keba, who lived across the street from defendant's property, awoke to find defendant arguing with Morris near the front porch of that residence. Keba could hear only portions of the conversation and thereafter returned to bed [2]. At approximately 11:30 p.m., Betsy Houghton (Thomas Houghton's wife and Romaine's cousin), saw defendant — carrying what "looked like a red gas can" — walk up Burr Street onto the porch of 22 Park Street and enter the downstairs apartment. Twenty minutes later, at 11:50 p.m., a 911 call was placed reporting a structure fire at that address, and firefighters arrived to find the first floor of the Burr Street side of the property fully engulfed in flames.

In the interim, Romaine awoke to the sound of neighbors pounding on the exterior door of the residence and was able to safely exit the premises. Upon being advised that Morris was believed to still be inside, firefighters twice attempted to gain access to the upstairs apartment — only to be turned back by heavy smoke and heat so intense that it damaged their helmets and thwarted their attempts to locate Morris through the use of a thermal imaging device [3]. The fire ultimately spread to the upstairs apartment, where Morris's severely charred body was recovered early the next morning [4]. During the course of the ensuing investigation, a state fire official discovered "a piece of melted [red] plastic in the debris" in the dining room of Slaybaugh's apartment that "was consistent with... a gasoline container."

Defendant thereafter was indicted and charged with murder in the second degree, manslaughter in the second degree, arson in the second degree, arson in the third degree and reckless endangerment in the second degree. Following a lengthy jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 25 years to life [5]. Defendant now appeals. [6]

We affirm. Initially, we reject defendant's numerous challenges to the eavesdropping warrant issued in this matter. Upon reviewing the detective's sworn affidavit in support of the warrant, which referenced statements made by certain identified witnesses, as well as the results of the underlying fire investigation, we are satisfied that the People established both probable cause for the warrant and, further, that traditional investigatory measures were unlikely to succeed (see CPL 700.15 [2], [4]; 700.20 [2] [b], [d]; People v Ross, 97 A.D.3d 843, 844 [2012], lv denied 20 N.Y.3d 935 [2012]) [7]. On this latter point, we note that defendant had worked as a confidential informant for the Gloversville Police Department and, as such, was familiar with, among other things, that agency's surveillance personnel, vehicles and techniques. Additionally, contrary to defendant's assertion, the detective's detailed trial testimony regarding the manner in which defendant's phone calls were intercepted and monitored demonstrated that appropriate minimization procedures (see CPL 700.30 [7]) were both established and employed (see generally People v Floyd, 41 N.Y.2d 245, 248-250 [1976]). Defendant's remaining arguments on this point — including his assertion that the People failed to timely serve him with notice of the eavesdropping warrant (see CPL 700.50 [3]), demonstrate exigent circumstances with regard to the postponement thereof (see CPL 700.50 [4]) and judicially seal the pertinent recordings (see CPL 700.50 [2]) — have been examined and found to be lacking in merit.

Nor are we persuaded that County Court erred with respect to certain of its pretrial rulings. Although defendant argues — in the context of County Court's Sandoval ruling — that the People should not have been permitted to inquire regarding his 1987 bail-jumping conviction, we considered and rejected a similar claim on defendant's direct appeal from his prior conviction (People v Alnutt, 101 A.D.3d 1461, 1463-1464 [2012]) and, for the reasons set forth therein, we again find defendant's argument on this point to be without merit.

Defendant's various challenges to County Court's Molineux rulings — to the extent that they have been preserved for our review — are equally unpersuasive. The People's theory of the case was that defendant — facing dwindling resources, mounting indebtedness and growing frustration over Slaybaugh's drug use and threatened infidelity — set the fire in order to collect on his insurance policy; defendant, in turn, suggested from the very start that the fire had been set by drug users or dealers in the community as retaliation for defendant's work as a confidential informant [8]. In our view, evidence of defendant's use or possession of drugs, as well the tumultuous nature of his relationship with Slaybaugh, provided necessary background information (see People v Burnell, 89 A.D.3d 1118, 1120 [2011], lv denied 18 N.Y.3d 922 [2012]) and was relevant to any number of recognized Molineux exceptions — including motive and intent (see People v Molineux, 168 NY 264, 293 [1901]). We also are satisfied that County Court properly balanced the probative value of such evidence against its prejudicial effect and, to that end, gave frequent and appropriate limiting instructions throughout the course of the trial.

Turning to the underlying convictions, defendant's generalized motion for a trial order of dismissal based upon legally insufficient evidence was not "specifically directed" (People v Gray, 86 N.Y.2d 10, 19 [1995] [internal quotation marks and citation omitted]) at the deficiencies now being urged and, therefore, this issue is unpreserved for our review (see People v Townsend, 94 A.D.3d 1330, 1330 n 1 [2012], lv denied19 N.Y.3d 1105 [2012]). That said, "our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crime[s] were proven beyond a reasonable doubt at trial" (People v Burch, 97 A.D.3d 987, 989 n 2 [2012], lv denied19 N.Y.3d 1101 [2012] ...


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