Opinion
July 8, 1970
Appeal from a judgment of the County Court of Delaware County, rendered July 7, 1969, upon a verdict convicting defendant of the crimes of arson in the first degree and manslaughter in the first degree. He was sentenced to an indeterminate sentence, with a maximum term of ten years on each count, the terms to run concurrently. The fire, upon which the indictments and subsequent conviction was predicated, occurred at the Hotel Cartwright in Sidney, New York on September 7, 1968 at approximately 4:20 A.M. Two persons, who were occupying rooms on the second floor of the hotel at the time fire occurred, died as a result of asphyxiation attributable to carbon monoxide poisoning. An employee of a discotheque located near the hotel testified that she saw defendant at the discotheque at approximately 11:30 P.M. on September 6, 1968 and that he told her that "he wouldn't be able to get a ride home so he was going to stay at Cartwright Hotel and when he went down and asked for one the proprietor said they didn't have any more rooms, that the hotel was full, so he said he went into the bar part of the hotel and wanted some beer but she wouldn't sell it to him because she said he had had enongh." She further testified that she saw the defendant again some 15-20 minutes later, at which time he informed her that he had secured a room at the Hotel De Cumber. Another witness who was awakened by the fire siren testified that she was standing on the sidewalk in front of the bank which was located some two blocks from the hotel and that while she was standing there, a young man, whom she subsequently identified as the defendant, approached her, stopped where she was standing and said "Where is the fire — at the hotel"? and then "hurried" down the street in a general direction away from the hotel. The Chief of the Sidney Fire Department, who directed the fire-fighting operations, testified that upon arriving at the hotel, he saw fire in the front hallway and did not see fire in any other part of the hotel except in the front hallway. Subsequently, he examined the premises and at the trial expressed the opinion that the fire had started in the front hallway of the hotel in the vicinity of the desk which was located near the front stairway "because that is where it was burned the most". A State Police officer who investigated the blaze confirmed that the fire had centered around the desk. Defendant was taken into custody by the State Police on the evening of September 13, 1968 and upon being questioned, he acknowledged that he had gone back to the hotel and set fire to a white card which he had found in the reception desk in the front hallway. After the card started burning, he dropped it to the floor, pulled all the other papers out of the desk and dropped them to the floor where the card was burning. He thereupon left the hotel. Upon this appeal, appellant urges, among other considerations, that there was insufficient evidence to warrant his conviction of the crime of arson in the first degree. Section 395 of the Code of Criminal Procedure provides that "A confession of a defendant * * * is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed". The principles applicable in determining whether the requirements of section 395 have been met, particularly in cases involving the crime of arson, are succinctly summarized by the Court of Appeals in People v. Reade ( 13 N.Y.2d 42, 45-46): "The purpose sought to be served by this requirement — that there be evidence of the corpus delicti apart from the confession — is, of course, to avert `The danger that a crime may be confessed when [in fact] no such crime * * * has been committed by anyone'. ( People v. Lytton, 257 N.Y. 310, 314; see People v. Louis, 1 N.Y.2d 137, 140.) In an arson case, the corpus delicti consists of a burning which is willful (see, e.g., People v. Viscio, 241 App. Div. 499, 500; People v. Wagner, 71 App. Div. 399, 401) or, to borrow from the concept expressed in the murder cases (see People v. Cuozzo, 292 N.Y. 85, 92; People v. Conroy, 287 N.Y. 201, 202), a fire set by criminal or guilty human agency. (See, also, People v. Deacons, 109 N.Y. 374, 377-378; People v. Popoff, 289 N.Y. 344 [in which the additional proof of arson was clearly insufficient]; People v. Teeter, 308 N.Y. 852; People v. Louis, 1 N.Y.2d 137, 140, supra.) As a study of the relevant decisions demonstrates, the additional proof, which need not `amount to direct proof of the defendant's [criminal] act' ( People v. Brasch, 193 N.Y. 46, 59; see, also, People v. Conroy, 287 N.Y. 201, 202, supra), may be sufficient `even though it fails to exclude every reasonable hypothesis save that of guilt'. ( People v. Cuozzo, 292 N.Y. 85, 92, supra; see, also, People v. Badgley, 16 Wend. 53; People v. Jaehne, 103 N.Y. 182.) On the other hand, corroboration of the truth of the confession, without more, `does not satisfy the statutory command of section 395.' ( People v. Cuozzo, 292 N.Y. 85, 93, supra.) However, as this court wrote in Jaehne (103 N.Y., at pp. 199-200), a bribery case, `when, addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a noncompliance with the requirement of the statute.' It is for this reason that presence at the scene, proof of motive, evidence of flight and other conduct indicating a consciousness of guilt may, as indicated, be held to constitute the essential additional proof. (See, e.g., People v. Cuozzo, 292 N.Y. 85, 92, supra.)" In the present case, it is our opinion that there is present in the record essential additional proof, apart from and independent of the defendant's confession, sufficient to demonstrate that the fire was of incendiary origin. The testimony establishes that the fire originated in the vicinity of the reception desk in the front hallway of the hotel. Further testimony indicates that there was no electrical outlet at what appeared to be the hottest point and that subsequent investigation by the State Police and fire underwriters of the fuse boxes failed to disclose any malfunction of the electrical system, circumstances which are some evidence to negative the possibility that the fire was of accidental origin. Additionally, there is no evidence that anyone in the hotel was in that general area at the time the fire occurred. Although not essential to proving the corpus delicti, there is also available in the record additional evidence to suggest that the defendant was responsible for the fire. In this regard there is testimony that the defendant was denied a room at the hotel and that the proprietress had also refused to sell beer to him. Other testimony places defendant within two blocks from the scene of the fire, walking in a general direction away from the blaze and attributes to him the remark "Where is the fire — at the hotel?" Taken together all these facts and circumstances constitute the necessary additional proof from which a finding could be made of the fire's incendiary origin and defendant's implication therewith. We are satisfied, as was the Trial Judge presiding at the Huntley hearing and subsequently at the trial itself, of defendant's informed and intelligent waiver and of the voluntary nature of his confession. Testimony established that the defendant was twice apprised of the fourfold Miranda warnings, once prior to the commencement of the questioning and again prior to the taking of the written statement, that defendant was asked whether he desired to have his parents or a clergyman present, which offer he declined, that he was generally co-operative and answered the questions asked of him. With respect to the time element involved, the defendant's oral statement to the police acknowledging his participation was given some five hours after the questioning began and police testimony indicates that during this period of time efforts were made by the police to secure independent confirmation of the information being supplied by the defendant. The suggestion that defendant may have been laboring under some type of mental disability at the time the questioning occurred is not supported by the evidence. Taking into account all of the circumstances surrounding the defendant's questioning, we think it was established that defendant knowingly and intelligently had waived his rights and that his inculpatory statement was properly received in evidence. Judgment affirmed. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Aulisi, J.