                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     105064
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

BRION L. PETERS,
                    Appellant.
________________________________


Calendar Date:   January 13, 2015

Before:   Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-
Ulacco of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered March 9, 2012, upon a verdict
convicting defendant of the crimes of manslaughter in the second
degree and unlawful manufacture of methamphetamine in the third
degree.

      In the early morning hours of May 8, 2011, defendant and
Gary Varlan were manufacturing crystal methamphetamine in a
remote cabin in Chemung County. In so doing, they placed three
plastic pitchers containing lantern fuel on a lit wood-burning
stove. The fuel ignited, causing a fire that burned the cabin to
the ground. While all four of the cabin's occupants exited the
building, the victim later died in the hospital as a result of
severe burns covering the majority of her body. Defendant was
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thereafter charged with manslaughter in the second degree and
unlawful manufacture of methamphetamine in the third degree and,
following a jury trial, was convicted of both charges. He
appeals, challenging the legal sufficiency and weight of the
evidence supporting his conviction of manslaughter in the second
degree.

      Defendant specifically asserts that the People failed to
establish that he caused the victim's death, as the evidence did
not exclude the possibility that the fire resulted from a third
party opening the wood stove door. Defendant further argues that
the evidence is legally insufficient to prove that his actions
were reckless, as he was assured by Varlan that placing a pitcher
of fuel on the wood stove was safe. In conducting a legal
sufficiency review, "we view the evidence in the light most
favorable to the People and will not disturb the verdict so long
as the evidence demonstrates a valid line of reasoning and
permissible inferences that could lead a rational person to the
conclusion reached by the jury" (People v Peryea, 68 AD3d 1144,
1146 [2009], lv denied 14 NY3d 804 [2010] [citations omitted];
see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Barreto,
64 AD3d 1046, 1048 [2009], lv denied 13 NY3d 834 [2009]). "A
person is guilty of manslaughter in the second degree when [he or
she] recklessly causes the death of another person" (Penal Law
§ 125.15 [1]; see People v Heslop, 48 AD3d 190, 195 [2007], lv
denied 10 NY3d 935 [2008]). Recklessness in this context
requires that a person be "aware of and consciously disregard[] a
substantial and unjustifiable risk" of death (Penal Law § 15.05
[3]; see People v Hartman, 4 AD3d 22, 24 [2004]).

      The trial evidence established that defendant, Varlan,
Brian Yontz and the victim were at Varlan's cabin and had used
methamphetamine. In the hours before the fire erupted, defendant
and Varlan proceeded to the basement to make a batch of crystal
methamphetamine. Varlan then brought two plastic pitchers of
lantern fuel upstairs to the living room and placed them on top
of a grate on the surface of the wood stove. When defendant
ascended to the living room, he placed a third plastic pitcher of
lantern fuel on the wood stove, on top of three rings, which he
believed were made of metal. According to Yontz, who was seated
in the living room reading, defendant then became absorbed in
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looking for something and panicked when he realized that he had
"left the pitcher [on the stove for] too long," melting the
bottom of the pitcher so that when defendant attempted to lift
it, fuel ran down the side of the stove and caught fire.
Defendant countered Yontz's description by testifying that, after
placing the plastic pitcher on the wood stove, he briefly exited
the cabin and, when he returned, a blaze had ignited around the
wood stove. Varlan and the victim were in a back room and,
although Varlan managed to escape nearly unharmed, the victim was
the last to exit the cabin and, when she did so, she was
enveloped in flames.

      Although defendant now contends that the fire may have been
ignited by Yontz opening the wood stove door and exposing the
fuel to an open flame, Yontz, Varlan and defendant himself all
testified that the wood stove door was not opened following the
placement of the plastic pitchers on the stove's surface.
Furthermore, an arson investigator with the State Office of Fire
Prevention and Control testified that lantern fuel can ignite
without an open flame and that, following the fire, the wood
stove was found with the residue of melted plastic on its
surface. Additionally, a hazardous materials specialist with the
same state office testified that a wood stove could heat a
plastic pitcher to melting temperature.

      Turning to the mens rea element of manslaughter in the
second degree, defendant contends that, based on assurances from
Varlan, he believed his placement of the plastic pitcher of fuel
on the active wood stove was safe, and that he therefore was not
aware of and did not consciously disregard an unjustifiable risk
of death. However, defendant conceded that he knew that lantern
fuel was highly flammable, that he had previously caused a fire
while manufacturing methamphetamine using ether, that the plastic
pitchers would "obviously melt" if placed on a hotplate and that
he was aware of other "meth fire[s and] meth lab explosions."
Upon our review of the evidence, we find that it was legally
sufficient to support defendant's conviction of manslaughter in
the second degree (see People v Lewie, 17 NY3d 348, 358 [2011];
People v DaCosta, 6 NY3d 181, 182 [2006]; People v Reichel, 110
AD3d 1356, 1364 [2013], lv denied 22 NY3d 1090 [2014]). Further,
since a different verdict would not have been unreasonable, upon
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considering the evidence in a neutral light and according
deference to the jury's credibility determinations, we conclude
that the verdict on the manslaughter count is not against the
weight of the evidence (see People v Danielson, 9 NY3d 342, 349
[2007]; People v Peterson, 118 AD3d 1151, 1153 [2014], lvs denied
24 NY3d 1087 [2014]; People v Barreto, 64 AD3d at 1048-1049).

     Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
