EGAN Jr., J.
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.
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.
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.
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 [4]) 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 AD3d at 1231; Matter of Arcuri v Kirk, 231 AD2d at 963-964; compare Matter of Taub v Altman, 3 NY3d 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,
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 [1979]; Briggs, Cambereri, Coffey, Mehler, Schwartz & Shapiro, 1-2 New York Criminal Practice § 2.08 [4] [c]). 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,
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). 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 [2] [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 [1996]), including motive (see People v Kelley, 46 A.D.3d 1329, 1331-1332 [2007], lv denied 10 N.Y.3d 813 [2008]), intent (see People v Carter, 74 A.D.3d 1375, 1378 [2010], lv denied 15 N.Y.3d 772 [2010]; People v Griffin, 26 A.D.3d 594, 594-595 [2006], lv denied 7 N.Y.3d 756 [2006]) and modus operandi (see People v Comfort, 31 A.D.3d 1110, 1112 [2006], lv denied 7 N.Y.3d 847 [2006]; People v Zinaman, 259 A.D.2d 327, 327 [1999], lv denied 93 N.Y.2d 931 [1999]; People v Jones, 236 A.D.2d 846, 846 [1997]). 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 [2] [c]; see People v Rogers, 94 A.D.3d 1246, 1248 [2012], lv denied 19 N.Y.3d 977 [2012]). 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 [3]; see People v Pirillo, 78 A.D.3d 1424, 1425 [2010]). If, however, the offenses were joined upon any other basis identified in the statute (see CPL 200.20 [2] [a], [b], [d]), "`the court lack[s] statutory authority to sever'" (People v Rogers, 94 AD3d at 1248, quoting People v Bongarzone, 69 N.Y.2d 892, 895 [1987]; see People v Cherry, 46 A.D.3d 1234, 1236 [2007], lv denied 10 N.Y.3d 839 [2008]; People v Kelley, 46 AD3d at 1331).
Nor do we find merit to defendant's claim that County Court erred in denying his motion to suppress certain newspaper clippings seized from his briefcase.
As for defendant's claim that the police could not properly search his briefcase, which was located in his office, for such clippings pursuant to the separate office warrant, we do not agree.
Applying these principles to the matter before us, the police could properly search any file cabinet, drawer, box, folder or other container in defendant's office where such papers or clippings might be found — including defendant's briefcase (see id.; see also People v Allen, 156 A.D.2d 700, 701 [1989]). Contrary to defendant's assertion, the validity of the office search warrant is in no way undermined by any defect in the briefcase warrant. Finally, even assuming that an irregularity exists with respect to the underlying warrant returns, the filing of the return and inventory as set forth in CPL 690.50 (5) is a ministerial act, and the failure to comply with the statutory provisions "will not
We reach a similar conclusion with respect to a particular statement made by defendant following his arrest by members of the Town of Schodack Police Department on February 24, 2009. "Not all remarks made by law enforcement personnel constitute impermissible interrogation" (People v Lombardi, 97 A.D.2d 278, 280 [1983] [emphasis added; citations omitted]). Here, as part of the booking process, defendant, who had not been Mirandized, was provided with a copy of the accusatory instrument, whereupon — consistent with what was described as standard departmental practice — he was asked "if he wanted [the accusatory instrument] read to him or if he wanted to read it." In response, defendant stated, "No, I know what it's about."
To our analysis, this simple administrative inquiry required nothing more than a "yes" or "no" answer. Notably, the question posed was not open-ended in nature, did not invite discussion (compare People v Lombardi, 97 AD2d at 279-280) and, under the circumstances presented, was neither "a disguised attempt at [an] investigatory interrogation" (People v Callicut, 101 A.D.3d 1256, 1264 [2012], lv denied 20 N.Y.3d 1096 [2013]) nor an inquiry that the police "should have known [was] reasonably likely to elicit an incriminating response" (Rhode Island v Innis, 446 U.S. 291, 302 [1980]; see People v Rodney, 85 N.Y.2d 289, 294 [1995]; People v Callicut, 101 AD3d at 1264; People v Franklin, 288 A.D.2d 751, 752-753 [2001], lv denied 97 N.Y.2d 728 [2002]; compare People v Lombardi, 97 AD2d at 280). The fact that the question may have produced what defendant now regards as an incriminating response is of no moment, as "the test for suppression is not whether the information [obtained was] inculpatory but whether the police were trying to inculpate defendant or merely process[] him" (People v Nelson, 147 A.D.2d 774, 776 [1989], lv denied 74 N.Y.2d 794 [1989]; see People v Hester, 161 A.D.2d 665, 666 [1990], lv denied 76 N.Y.2d 858 [1990]). Accordingly, we discern no basis upon which to suppress defendant's statement.
Defendant's asserted Molineux violations do not warrant extended discussion. Assuming, without deciding, that County Court erred in admitting into evidence testimony regarding an
Defendant next contends that County Court erred in admitting into evidence a report prepared by an FBI forensic chemistry examiner, who opined as to the composition of six substances — three powder samples and three samples of an epoxy-type resin containing a fuse — that were recovered from, among other places, defendant's office.
To be sure, the Sixth Amendment to the United States Constitution guarantees a defendant the right to confront the witnesses against him or her (see People v Brown, 13 N.Y.3d 332, 338 [2009]) and, for that reason, "surrogate testimony," i.e., the process by which "the testimonial statement of one witness ... [is] enter[ed] into evidence through the in-court testimony of a second person" is not permitted (Bullcoming v New Mexico, 564 US ___, ___, ___, 131 S.Ct. 2705, 2713, 2714 [2011]; compare People v Rios, 102 A.D.3d 473, 475 [2013], lv denied 20 N.Y.3d 1103 [2013]). Thus, in order to avoid a Crawford violation (see Crawford v Washington, 541 U.S. 36, 42 [2004]), "analysts who write reports that the prosecution introduces [into evidence at trial] must be made available for confrontation even if they possess `the scientific acumen of Mme. Curie and the veracity of Mother Teresa'" (Bullcoming v New Mexico, 564 US at ___, 131 S Ct at
Here, however, no surrogate testimony was adduced at defendant's trial and, therefore, no Crawford violation occurred. Although the analyst in question indeed based his opinion upon raw data that was generated — in part — by another chemist in the same lab, a review of the record makes clear that, among other things, the testifying analyst drew his own scientific conclusions from such data; those conclusions, in turn, were embodied in the expert report that the testifying analyst authored. Additionally, even assuming that the raw data qualifies as testimonial evidence within the meaning of Crawford — an issue we need not address — neither the data itself nor any conclusions reached or opinions held by the nontestifying analyst were entered into evidence at trial, and the analyst who did opine as to the composition of the substances at issue testified and was subject to cross-examination (see People v Brown, 13 NY3d at 340). Under these circumstances, defendant's right of confrontation was not violated simply because the People's expert "made reference to data gathered by [a] nontestifying [analyst]" (People v Vargas, 99 A.D.3d 481, 481 [2012]; see People v Rios, 102 AD3d at 475; compare Bullcoming v New Mexico, 564 US at ___ _ ___, 131 S Ct at 2713-2714; Melendez-Diaz v Massachusetts, 557 US at 309-311).
Defendant's claim that County Court abused its discretion in admitting certain demonstrative evidence is equally unavailing. "Demonstrations and tests, when relevant to a contested issue, can play a positive and helpful role in the ascertainment of the truth" (People v Caballero, 34 A.D.3d 690, 691 [2006], lv denied 8 N.Y.3d 878 [2007] [internal quotation marks and citation omitted]; accord People v Boone, 176 A.D.2d 1085, 1086 [1991], lv denied 79 N.Y.2d 853 [1992]). To that end, "[i]t is for the trial court, in the exercise of its sound discretion [and] based upon the nature of [the] proof and the context in which it is offered, to determine whether the value of the [proffered] evidence outweighs its potential for prejudice" (People v Boone, 176 AD2d at 1086; see People v Acevedo, 40 N.Y.2d 701, 704-705 [1976]; People v Mercereau, 84 A.D.3d 1270, 1271 [2011], lv denied 17 N.Y.3d 819 [2011]).
Here, the demonstrative evidence consisted of an FBI video depicting six controlled explosions — three utilizing M-98s, the largest commercially manufactured consumer firecrackers that may be purchased legally (each containing 50 milligrams of
With respect to the various crimes of which defendant ultimately was convicted, defendant argues that his conviction of arson in the first degree (under count 1 of the indictment) is not supported by legally sufficient evidence and, further, is against the weight of the evidence. In this regard, although defendant's challenge to the legal sufficiency of the evidence is not preserved for our review, "our weight of the evidence review necessarily involves an evaluation of whether all elements of
Here, there is no question that a residence belonging to Colleen Cappitumino and Stephen Cappitumino in the Town of Rotterdam, Schenectady County was damaged by an explosive device in August 2001 and, given that a car was parked in the driveway on the morning in question and at least one light was on inside the residence, the latter of which would have been visible from the front porch where the explosion occurred, we are satisfied that those circumstances gave rise to a reasonable possibility that there were people inside the residence at the time. Hence, the only remaining question is whether the jury failed to give the evidence the proper weight in concluding that defendant was the perpetrator. Viewing the evidence in a neutral light — including the testimony of Cynthia Chevalier, Robert Denny, Harold Gray and Keith McKenna, together with statements made by defendant during a recorded conversation with McKenna in December 2008 — and according due deference to the jury's credibility determinations (see People v Jones, 101 A.D.3d 1482, 1482 [2012]; People v Weiss, 99 A.D.3d 1035, 1038 [2012], lv denied 20 N.Y.3d 1015 [2013]), we find that the jury's verdict is not against the weight of the evidence. Accordingly, defendant's judgment of conviction will not be disturbed.
As for defendant's claim that he was denied the effective assistance of counsel, we disagree. A review of the record reveals that defense counsel engaged in appropriate motion practice, made cogent opening and closing statements, effectively cross-examined the People's numerous witnesses, presented a coherent defense and, contrary to defendant's assertion, made timely and appropriate objections. Additionally, defense counsel successfully moved to have one of the counts dismissed against defendant at the close of the People's case based upon legal insufficiency (count 25) and, further, secured an acquittal for defendant on four of the charges against him (counts 2, 4, 10
Finally, even assuming that defendant's various hearsay objections were valid, we nonetheless would conclude that County Court's failure to sustain the relevant objections was harmless error, as "there was no significant probability that the jury would have acquitted defendant in light of the overwhelming evidence of his guilt" (People v Ortiz, 33 A.D.3d 1044, 1045 [2006]; see People v Phillips, 55 A.D.3d 1145, 1147 [2008], lv denied 11 N.Y.3d 899 [2008]; People v Lewis, 25 A.D.3d 824, 826 [2006], lv denied 7 N.Y.3d 791 [2006]). Defendant's remaining contentions, including his assertion that the sentence imposed is harsh and excessive, have been examined and found to be lacking in merit.
Ordered that the judgment is affirmed.