Jonathan S. Fishbein, for appellant.
Christopher D. Horn, for respondent.
The primary issue in this case is whether factual inconsistency in a jury verdict acquitting a defendant of one count but convicting him of another renders the record evidence legally insufficient to support the conviction. We hold that it does not.
On April 16, 2009, defendant Akiva Abraham's limited liability company, 1st Call, LLC, acquired a property in Colonie on which stood an abandoned night club known as Saratoga Winners. The purchase price was only one dollar, apparently because the property was encumbered by a bank lien.
On the same day, Parel Road, LLC, originated a mortgage in the amount of $475, 000 to 1st Call for the purchase of the property. Parel Road never transferred any money to 1st Call. And at the time of the transaction, Parel Road had about $25.00 in its checking account. Whether Parel Road owned other assets was not established at trial.
Also on the day of the purchase, defendant signed a property insurance contract with an insurance agent at Shank & Farley, securing coverage in the amount of $475, 000. The policy became effective on April 20, 2009.
On April 30, 2009, two weeks after the purchase, Saratoga Winners burned to the ground. Once fire crews had extinguished the flames, fire investigators searched for the origin of the blaze. A trained dog identified the presence of accelerants both outside and inside the destroyed building. Investigators took samples at the locations the dog identified and sent them to the New York State Police Forensic Investigations Center. They tested positive for strong concentrations of medium petroleum distillate of the kind that is used to light lamps, such as "Klean Heat" or "Tiki" torch fuel. The presence of the accelerants combined with the lack of any fire hazards in the building caused investigators to rule out all possible causes for the fire except arson.
Defendant reported the loss to his insurance company and caused a property loss notice to be filed. He told the company that he did not know the cause of the fire.
Investigators interviewed defendant on two occasions after the fire. The interviews were recorded and played for the jury at trial. During the interviews, defendant gave elaborate explanations of the financial transactions accompanying his purchase of the property and how he intended to profit from flipping it. But it was revealed at trial that the company that held the mortgage, Parel Road, actually was his father's 401K, which defendant controlled.
Investigators discovered that on April 27, 2009, three days before the fire, defendant had purchased four gallons of Tiki torch fuel (a medium petroleum distillate) and two nine-pack boxes of Duraflame logs at Home Depot. Police arrested defendant on May 15, 2009 and conducted a search of his car and home. Tests on one of the floor mats in defendant's car revealed an "abundance" of a medium petroleum distillate . A search of a shed behind defendant's home revealed four empty one gallon bottles of Tiki torch fuel and two empty Duraflame boxes. Investigators discovered Tiki torches in the shed as well. Also at defendant's home were a kerosene canister and a gas can. The officers did not seize either container, or check whether they contained Tiki torch fuel.
Defendant was charged with arson in the third degree, insurance fraud in the second degree, and reckless endangerment in the first degree. His first trial ended in a hung jury.
At his second trial, it came out that on at least two occasions, 1st Call had been unable to meet its payroll obligations. After the fire, defendant told a 1st Call employee that the fire "could be big for us."
The prosecution's theory of the case was that defendant needed money, obtained a fake mortgage to make it appear as though he intended to improve the property, obtained insurance in the amount of that mortgage, burned down the building, and lied about the cause of the fire to the insurance company to collect on the insurance. During opening and closing, the prosecution repeatedly referred to the mortgage as "fake" and "bogus." At closing, the defense objected, arguing that the prosecution had not proved ...