Calendar Date: February 6, 2013
Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ.
Egan Jr., J.
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered June 8, 2010, upon a verdict convicting defendant of the crimes of arson in the first degree, criminal possession of a weapon in the first degree (three counts), attempted criminal mischief in the first degree (two counts), attempted arson in the third degree (two counts), criminal mischief in the second degree (five counts), criminal mischief in the third degree (three counts), attempted coercion in the first degree and conspiracy in the fourth degree.
From 1973 until his arrest in February 2009, defendant was employed by the Schenectady City School District — most recently in the capacity of director of facilities — and, from 2001 until the time of his arrest, defendant also served as the president of his local union unit. Following a wave of vandalism directed at residences or vehicles belonging to, among others, former District employees Harold Gray, Ronald Kriss and Gary DiNola, defendant was charged in a 26-count indictment with various crimes — the most serious of which was arson in the first degree (two counts). A lengthy trial ensued, at the conclusion of which the jury found defendant guilty of arson in the first degree, criminal possession of a weapon in the first degree (three counts), attempted criminal mischief in the first degree (two counts), attempted arson in the third degree (two counts), criminal mischief in the second degree (five counts), criminal mischief in the third degree (three counts), attempted coercion in the first degree and conspiracy in the fourth degree . Defendant thereafter was sentenced to an aggregate prison term of 23 years to life and was ordered to pay restitution. This appeal by defendant ensued.
We affirm. Defendant initially contends that County Court lacked geographic jurisdiction over the 14 counts of the indictment alleging conduct that occurred in Albany, Rensselaer and Saratoga Counties, arguing that the People failed to particularize the harm caused to Schenectady County by defendant's conduct and, thus, the indictment was defective as to those counts . At the outset, we note that, in order for prosecutorial jurisdiction to lie in Schenectady County for the extraterritorial crimes, defendant's conduct must have "had, or was likely to have, a particular effect upon [the] [C]ounty... or part thereof, and [have been] performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein" (CPL 20.40  [c]) . To that end, criminal conduct has a "particular effect" upon a county when the consequences thereof "have a materially harmful impact upon the governmental processes or community welfare" of that county (CPL 20.10 ) such that the defendant's out-of-county conduct "expose[s] a large number of county residents to a specific harm" (Matter of Taub v Altman, 3 N.Y.3d 30, 36 ) . In this regard, the injury alleged must be "concrete and identifiable" and of the type that can be demonstrated by proof (Matter of Steingut v Gold, 42 N.Y.2d 311, 318 ; see People v Zimmerman, 9 N.Y.3d 421, 426 ). The People bear the burden of proving that venue is proper by a preponderance of the evidence, and whether the subject county has geographic jurisdiction over each of the charged offenses presents a factual issue for the jury to resolve (see People v Ribowski, 77 N.Y.2d 284, 291-292 ; Matter of Arcuri v Kirk, 231 A.D.2d 962, 964 ).
Initially, we reject defendant's contention that the indictment was facially insufficient in that it failed to specify the particular effect upon Schenectady County. Although the indictment admittedly did little more than mimic the statutory language of CPL 20.40 (2) (c), the People's bill of particulars set forth, in detail, their theory of venue and the specific facts to support their contention that defendant's conduct in Albany, Rensselaer and Saratoga Counties affected the policies and procedures of the District, the local union unit and, in turn, the hundreds of District employees and union members that lived or worked in Schenectady County on a daily basis. Moreover, the District Attorney's affirmation in response to defendant's omnibus motion amplified the People's theory of the prosecution and included specific details as to the alleged injury to Schenectady County . Accordingly, when considered together, the bill of particulars, the District Attorney's affirmation and the indictment sufficiently apprised defendant of the charges against him, as well as the basis upon which Schenectady County was asserting geographic jurisdiction (see Matter of Taub v Altman, 3 N.Y.3d at 40; People v Cockett, 95 A.D.3d 1230, 1231 , lv denied 19 N.Y.3d 958 ; compare Matter of Steingut v Gold, 42 N.Y.2d at 318; see generally People v Perez, 93 A.D.3d 1032, 1034-1035 , lvs denied 19 N.Y.3d 1000 ; People v Palmer, 7 A.D.3d 472, 472 , lv denied 3 N.Y.3d 710 ).
The record also reveals that the People demonstrated by a preponderance of the evidence that defendant's out-of-county conduct had, or was likely to have, a "materially harmful impact" (CPL 20.10 ) upon a significant number of individuals who either resided in Schenectady County or worked directly with students and others who resided in Schenectady County (see People v Cockett, 95 A.D.3d at 1231; Matter of Arcuri v Kirk, 231 A.D.2d at 963-964; compare Matter of Taub v Altman, 3 N.Y.3d at 38-39). The testimony of the victims, as well as other District employees, revealed that defendant used the acts committed in Saratoga and Rensselaer Counties,  in conjunction with similar acts committed in Schenectady County, to develop and sustain a reputation as a dangerous man to cross — a reputation he cultivated for the express purpose of exerting control over his own employees and other District employees, and gaining influence over the local school board, District administrators and union officials. Specifically, a number of defendant's employees testified that they were aware that explosive devices similar to those used in the extraterritorial crimes were kept by defendant in plain view in his office at the middle school and in the truck he drove to and from work. This knowledge, together with generalized threats made by defendant against anyone who challenged him, as well as specific threats made against individuals who he believed were working against him, led his employees to fear for their jobs and to fear retaliation if they lodged any complaints against defendant. Indeed, defendant's employees believed that he had retaliated against Harold Gray and Deborah Gray by, among other things, defacing their automobiles and their Saratoga County home. In this regard, the People elicited testimony that defendant led a convoy of approximately 12 employees — in District vehicles during work hours — to view the damage, which included the word "RAT" painted in red on the house, a word often used by defendant to describe individuals who he believed were working against him.
Additionally, defendant's intimidation techniques also resulted in a drop in grievances by his employees, a fact that he exploited with District administrators and arguably led to defendant obtaining greater responsibilities — and higher remuneration — from the District. Defendant also required his employees to campaign for school board members during work hours in an attempt to curry favor with those elected officials. As an apparent result of these efforts, conflicts between defendant and his employees or other District employees went unaddressed by his superiors — sometimes with direct impact upon the students. Indeed, defendant's conflict with DiNola, the District's Director of Wellness and School Activities, regarding defendant's decision to restrict access to athletic facilities and outdoor field lighting was ignored despite DiNola's repeated complaints to District administrators that the safety of District and visiting students, as well as the many members of the public who attend athletic events, was in jeopardy. Defendant retaliated against DiNola by leaving a lit explosive device on DiNola's automobile outside his Saratoga County home, which DiNola testified terrorized him and his family and caused him to stop advocating for these issues. In addition, defendant's involvement in the damage to, and attempted bombing of, Laura Balogh's Rensselaer County home stemmed from defendant's relationship with Joanne DeSarbo, who was the president of the local union that included the unit of which defendant was president. Defendant's close friendship with DeSarbo, coupled with the fact that she and other union officials ignored complaints that defendant's status as both unit president and director of facilities — a management position — resulted in a patent conflict of interest, served to further cement defendant's reputation as being untouchable.
In sum, the evidence shows that the intended and actual impact of defendant's use of explosive devices and other menacing acts in Rensselaer and Saratoga Counties was to unleash fear and intimidation that flowed back into the District, touching — on a broader level — virtually everyone within its boundaries (cf. People v Fea, 47 N.Y.2d 70, 77-78 ; Briggs, Cambereri, Coffey, Mehler, Schwartz & Shapiro, New York Criminal Practice § 2.08  [c] [Note: online treatise]). Given the District's size — 21 schools — and its vital role both in the community (see generally Campaign for Fiscal Equity v State of New York, 100 N.Y.2d 893, 901-902 ) and as a political subdivision of the state (see generally City of New York v State of New York, 86 N.Y.2d 286, 289-290 ), we find the evidence sufficient for the jury to conclude that Schenectady County had geographic jurisdiction over the extraterritorial crimes of which defendant was convicted (see CPL 20.10 ; 20.40  [c]).
Defendant next contends that County Court abused its discretion in refusing to sever counts 1-3, 5-12, 14, 20 and 26 of the indictment; specifically, defendant asserts that count 2 (charging arson in the first degree as to a residence belonging to Frederick Apfel) was not properly joined and that the remaining enumerated counts should have been severed — generally by victim — as a matter of discretion pursuant to CPL 200.20 (3) (c). We do not agree.
The People may join multiple offenses within a single indictment where — insofar as is relevant here — proof of either offense would be "material and admissible" as evidence-in-chief upon a trial of the other offense (CPL 200.20  [b]). Notably, evidence may be deemed material and admissible within the meaning of CPL 200.20 (2) (b) if such proof would be admissible under any of the recognized Molineux exceptions (see People v Nelson, 233 A.D.2d 926, 926 ), including motive (see People v Kelley, 46 A.D.3d 1329, 1331-1332 , lv denied10 N.Y.3d 813 ), intent (see People v Carter, 74 A.D.3d 1375, 1378 , lvs denied15 N.Y.3d 772 ; People v Griffin, 26 A.D.3d 594, 594-595 , lv denied7 N.Y.3d 756 ) and modus operandi (see People v Comfort, 31 A.D.3d 1110, 1112 , lv denied7 N.Y.3d 847 ; People v Zinaman, 259 A.D.2d 327, 327 , lv denied93 N.Y.2d 931 ; People v Jones, 236 A.D.2d 846, 846 ). Additionally, offenses may be joined where, although based upon different criminal transactions, "such offenses are defined by the same or similar statutory provisions" (CPL 200.20  [c]; see People v Rogers, 94 A.D.3d 1246, 1248 , lv denied19 N.Y.3d 977 ). If the offenses at issue were joined solely because they were based upon the same or similar statutes, a court may — "in the interest of justice and for good cause shown" — order that such offenses be tried separately (CPL 200.20 ; see People v Pirillo, 78 A.D.3d 1424, 1425 ). If, however, the offenses were ...