        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

928
KA 10-01916
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICKY BAKER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


ROBERT TUCKER, PALMYRA, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (John B.
Nesbitt, J.), rendered April 1, 2010. The judgment convicted
defendant, upon his plea of guilty, of misdemeanor driving while
intoxicated.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of driving while intoxicated
(Vehicle and Traffic Law § 1192 [2]) and, in appeal No. 2, he appeals
from a judgment convicting him of arson in the second degree (Penal
Law § 150.15) following a jury trial before the same County Court
Judge who accepted the guilty plea in appeal No. 1. Contrary to
defendant’s contention in appeal No. 1, the court properly determined
that the police officer had the requisite reasonable suspicion to
believe that he had committed a traffic infraction or criminal offense
and thus properly stopped defendant’s vehicle. The evidence presented
at the suppression hearing established that a “radio computer check
revealed that the license plates on the [vehicle that] the police
observed the defendant operating were in fact issued for [and reported
stolen from another vehicle, and thus] there was ample justification
for the stop of” defendant’s vehicle (People v Lassiter, 161 AD2d 605,
605-606; see generally People v Singleton, 41 NY2d 402, 404). Despite
defendant’s further contention to the contrary, the record establishes
that the officer correctly entered the license plate number when
performing a record check on the license plate. In any event, even if
the officer had accidentally entered an incorrect license plate
number, “[a] mistake of fact . . . may be used to justify a [stop]”
(People v Smith, 1 AD3d 965, 965; see People v Jean-Pierre, 47 AD3d
445, lv denied 10 NY3d 865).
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                                                         KA 10-01916

     We reject defendant’s contention in appeal No. 2 that the
evidence is legally insufficient to support the conviction of arson
(see generally People v Bleakley, 69 NY2d 490, 495). The People
presented evidence establishing that defendant set an apartment
building in his neighborhood on fire at approximately 3:30 A.M., that
at least one other person who was not a participant in the crime was
present in the building, and that “the circumstances [were] such as to
render the presence of such a person therein a reasonable possibility”
(Penal Law § 150.15). Defendant’s contention that there was no direct
evidence establishing such circumstances is without merit. Here,
“[e]vidence . . . that ‘circumstances [were] such as to render the
presence of [another person who was not a participant in the crime
inside the building] a reasonable possibility’ may be inferred from
both direct and circumstantial evidence” (People v Regan, 21 AD3d
1357, 1358, quoting § 150.15; see generally People v Ozarowski, 38
NY2d 481, 489-491). The evidence, including the testimony of the
individuals in the building at the time of the fire and the
photographs of the building taken immediately after the fire, is
legally sufficient to establish the existence of such circumstances
(see People v Lingle, 34 AD3d 287, 288, mod on other grounds 10 NY3d
457; People v Grassi, 92 NY2d 695, 698, rearg denied 94 NY2d 900).
Furthermore, viewing the evidence in light of the elements of the
crime of arson as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence (see generally Bleakley, 69 NY2d at 495).

     We agree with defendant, however, that the court erred in
considering certain information in determining the sentence to be
imposed for the arson conviction. At the time of sentencing, the
prosecutor contended that defendant was also responsible for setting
another fire in defendant’s neighborhood, which resulted in a
fatality, and the prosecutor asked the court to consider that
information in determining the sentence to be imposed for the arson
conviction. In denying defendant’s objection to the reference by the
prosecutor to the other fire, the court indicated that it would draw
“proper” inferences from the information, and the court ultimately
imposed the maximum sentence permissible for the arson conviction.

     Although we do not address the length of the term of
incarceration that was imposed, we nevertheless agree with defendant
that the court erred in considering the other alleged fire, i.e., an
uncharged crime, in determining the sentence for the arson conviction.
It is well settled that, “[a]lthough a court may consider uncharged
crimes in sentencing a defendant, it ‘must assure itself that the
information upon which it bases the sentence is reliable and
accurate’ ” (People v Bratcher, 291 AD2d 878, 879, lv denied 98 NY2d
673, quoting People v Outley, 80 NY2d 702, 712; see People v Hansen,
99 NY2d 339, 345; People v Naranjo, 89 NY2d 1047, 1049). There is no
indication in the record that the court ascertained the reliability of
the information provided by the prosecutor, which was disputed by
defendant and was not included in the presentence report or otherwise
referenced in the record before us. In addition, based on the record
before us, we conclude that the sentence is illegal insofar as the
period of postrelease supervision exceeds five years. “Although
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                                                        KA 10-01916

[that] issue was not raised before the [sentencing] court . . ., we
cannot allow an [illegal] sentence to stand” (People v Moore [appeal
No. 1], 78 AD3d 1658 [internal quotation marks omitted]; see People v
Gibson, 52 AD3d 1227, 1227-1228). The maximum period of postrelease
supervision that may be imposed upon a conviction of arson in the
second degree is five years, absent any indication that the arson was
sexually motivated (see Penal Law § 70.45 [2-a] [f]; § 70.80 [1] [a];
§ 130.91 [1], [2]). Inasmuch as there is nothing in the record
establishing such a motivation, we vacate the period of postrelease
supervision as well. Unless the People establish that the arson was
sexually motivated, the maximum period of postrelease supervision
shall be five years. We therefore modify the judgment in appeal No. 2
by vacating the sentence imposed, and we remit the matter to County
Court for resentencing.




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
