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

588
KA 10-00187
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHAD E. TOWSLEY, DEFENDANT-APPELLANT.


STEVEN J. GETMAN, OVID, FOR DEFENDANT-APPELLANT.

CHAD E. TOWSLEY, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered September 29, 2009. The judgment convicted
defendant, upon a jury verdict, of arson in the third degree, criminal
mischief in the second degree, criminal mischief in the third degree,
criminal mischief in the fourth degree and growing of the plant known
as cannabis by unlicensed persons.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, arson in the third degree
(Penal Law § 150.10 [1]) in connection with a fire at the leased
residence he shared with his girlfriend, and criminal mischief in the
third degree (§ 145.05 [2]) in connection with an incident that is
unrelated to the fire. Defendant contends that the evidence is
legally insufficient to support the conviction of criminal mischief in
the third degree because the People failed to establish that the value
of the property that he damaged exceeded $250. We reject that
contention (see generally People v Bleakley, 69 NY2d 490, 495). A
contractor with 20 years of experience testified that the cost of the
window he purchased to replace the window destroyed by defendant was
between $250 and $270 and that defendant’s girlfriend paid him for the
window, along with $100 for the labor involved (see People v Butler,
70 AD3d 1509, lv denied 14 NY3d 886).

     We reject defendant’s further contention that he was deprived of
a fair trial based upon County Court’s refusal to permit defendant’s
arson expert to testify from Texas via closed-caption television. As
the Court of Appeals explained in People v Wrotten (14 NY3d 33, 40),
“[t]elevised testimony requires a case-specific finding of necessity
                                 -2-                           588
                                                         KA 10-00187

[based on clear and convincing evidence]; it is an exceptional
procedure to be used only in exceptional circumstances.” Here,
defendant contended that the medical condition of the expert
necessitated the televised testimony, but defendant failed to present
any medical evidence to support that contention (cf. id. at 37).
Defendant retained a second expert who also resided in Texas, and that
expert advised defense counsel during the trial that he was unable to
appear in court to testify because of a medical problem. Following
repeated attempts by defense counsel and the court to ascertain when
the expert would be available, defense counsel advised the court that
the expert would not travel to New York to testify. We note that
neither of those experts opined that the fire was caused by means that
were other than intentional but, rather, they opined that the People’s
experts failed to rule out an electrical cause and thus that the cause
of the fire should have been deemed to be “undetermined.”

     Contrary to defendant’s contention, the court did not abuse its
discretion in denying his motion for a continuance to attempt to
locate another expert (see generally People v Brink, 57 AD3d 1484,
1485-1486, lv denied 12 NY3d 851). The record establishes that the
court had adjourned the trial for five months to enable defendant to
locate an expert, and defendant conceded that he was unable to locate
a local expert who was willing to testify for defendant. Thus,
contrary to defendant’s further contention, he was not precluded from
presenting witnesses in his defense (cf. People v Hartman, 64 AD3d
1002, 1005-1006, lv denied 13 NY3d 860). Moreover, because defense
counsel utilized the information contained in the reports prepared by
the two experts from Texas during his cross-examination of the
People’s experts, we conclude that defendant was not precluded from
presenting a defense (cf. id.). For the same reasons, we conclude
that the court did not abuse its discretion in denying defendant’s
motion for a mistrial on the ground that his experts were unavailable
to testify (see generally People v Ortiz, 54 NY2d 288, 292; People v
Henry, 9 AD3d 914, lv denied 3 NY3d 675).

     Defendant further contends that he was deprived of a fair trial
because the People failed to lay a proper foundation for testimony
regarding canine tracking at the scene of the fire but the court
nevertheless allowed the People to present that testimony. We reject
that contention. Where, as here, the People “established that the dog
and his trainer had received appropriate training in [flammable
liquid] detection and the dog had previously been proven to be
reliable, a proper foundation [was] laid for the introduction of
[that] testimony and it was properly admitted at trial” (People v
Kennedy, 78 AD3d 1233, 1235).

     We also reject defendant’s contention that the court erred in
refusing to suppress his statements to police. A police officer
testified that he placed defendant, who was intoxicated, in the back
of his patrol vehicle after defendant attempted to enter the burning
dwelling. According to the officer, he had no other location to place
defendant both for defendant’s safety and that of the fire personnel.
Defendant was not handcuffed, and the door of the patrol vehicle was
open while the police and the fire investigator asked defendant merely
                                 -3-                           588
                                                         KA 10-00187

investigatory questions. The court thus properly determined that
defendant was not subjected to custodial interrogation (see generally
People v Paulman, 5 NY3d 122, 129).

     The sentence is not unduly harsh or severe. We have reviewed
defendant’s remaining contentions, as well as those contentions raised
in his pro se supplemental brief, and conclude that none requires
reversal or modification of the judgment.




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