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

639
KA 09-01649
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VIRGINIA RICHARDSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALEXANDER BOUGANIM,
KRISTIN M. PREVE, OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Shirley
Troutman, J.), rendered April 17, 2009. The judgment convicted
defendant, upon a jury verdict, of arson in the third degree,
insurance fraud in the third degree and making a false written
statement.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed a sentence of incarceration is unanimously dismissed and
the judgment is otherwise affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of, inter alia, arson in the third degree (Penal
Law § 150.10 [1]) and insurance fraud in the third degree (§ 176.20).
Contrary to defendant’s contention, County Court properly refused to
suppress statements that she made to a fire marshall. Based on the
record of the suppression hearing, we conclude that the totality of
the circumstances at the time defendant was questioned by the fire
marshalls establishes that defendant was not in custody prior to the
administration of Miranda warnings (see People v Regan, 21 AD3d 1357,
1358; People v Langlois, 17 AD3d 772, 773-774). We further conclude
that the court properly denied defendant’s request for a
circumstantial evidence charge, inasmuch as the proof of guilt at
trial did not rest exclusively on circumstantial evidence (see People
v Roldan, 88 NY2d 826, 827; People v Whitfield, 72 AD3d 1610, lv
denied 15 NY3d 811). Defendant failed to preserve for our review her
contention that the evidence is legally insufficient to support the
conviction of arson in the third degree inasmuch as she failed to
renew her motion for a trial order of dismissal after presenting
evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). Defendant also failed to preserve for our review her further
contention that the court erred in omitting an element of insurance
fraud in the third degree from the jury charge (see People v Bermudez,
                                 -2-                           639
                                                         KA 09-01649

38 AD3d 1244, lv denied 8 NY3d 981). We decline to exercise our power
to review those contentions as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [a]).

     Finally, we dismiss the appeal to the extent that defendant
contends that the sentence is harsh and excessive inasmuch as
defendant has completed serving her sentence and thus that part of the
appeal is moot (see People v Mackey, 79 AD3d 1680).




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
