To be submitted

KA 10-00187

STATE OF NEW YORK

SUPREME COURT
APPELLATE DIVISION: FOURTH DEPARTMENT
PEOPLE OF THE STATE OF NEW YORK
Respondent,

-v-

CHAD E. TOWSLEY,
Defendant-Appellant.

Cayuga County
Indictment No. 2008-148

APPELLANTS BRIEF

STEVEN J. GETMAN, ESQ.

Attorney for Defendant-Appellant
7185 Main Street
PO Box 449
Ovid, NY 14521
607.869.9646
December 10, 2010

CONTENTS
TABLE OF AUTHORITIES......iii
Cases...iii
Statutes and other authority.......vii
Treatises, etc..............................viii

PRELIMINARY STATEMENT....ix
QUESTIONS PRESENTED......xi
STATEMENT OF FACTS..1
Investigation and Indictment................................................................................................1
Pretrial Proceedings and Motions........................................................................................8
Motion for Dismissal of Indictment.........................................................................8
Motions Regarding an Expert Defense Witness......................................................8
Motion for Testimony of Expert via Closed-Circuit....................................9
Motion for Reimbursement of Experts Travel Expenses.........................10
Motion to Suppress Defendants Statements.........................................................10
Motion to Preclude the Results of the Fire Investigators Canine.........................11
Trial Proceedings...............................................................................................................12
Results of the Fire Investigators Canine...............................................................12
Loss of the Defenses Expert Witness...................................................................14
Renewal of Motion for Electronic Testimony...........................................15
Motion for a Continuance or Mistrial........................................................15
Trial Motion for Dismissal.....................................................................................16
Criminal Mischief Third Degree................................................................16
Making Punishable False Written Statements...........................................17
Other Charges............................................................................................17
Requests to Charge the Jury...................................................................................17
The Jurys Verdict..............................................................................................................18
Post-verdict: Motions, Sentencing and Notice of Appeal..................................................19
ARGUMENT.................................................................................................................................22
I.

The trial court denied the defendant his right to a fair trial...................................22
A. The trial court erred in denying the defendants application to allow
its expert to testify via closed-circuit television or telephone................................22
B. The trial courts refusal to grant a continuance was
an abuse of discretion and in error.........................................................................27
C. The trial courts refusal to grant a mistrial
was an abuse of discretion and in error..................................................................29
D. The court violated the defendants right to
effective assistance of counsel...............................................................................30
i

E. The trial court erred in allowing testimony regarding canine hits

for ignitables at the scene.......................................................................................31
II.

The integrity of the grand jury was impaired and required

dismissal of the indictment....................................................................................31
A. The forepersons prior relationship with
and dislike of the defendant may have prejudiced the grand jury........................32
B. The indictment was improperly signed............................................................33

III.

The defendants statements to law enforcement were involuntary

and mandated suppression.....................................................................................33
A. The police failed to properly advise the defendant of
his constitutional rights before questioning...........................................................34
B. The defendants high degree of intoxication
rendered his statements involuntary......................................................................35

IV.

The trial evidence was not legally sufficient to establish

the offense of Criminal Mischief Third Degree.....................................................36

V.

The trial court erred in refusing to give

the jury a circumstantial evidence charge..............................................................38

VI.

The guilty verdicts concerning the fire were inconsistent

with the acquittals and should be set aside on repugnancy grounds.....................40

VII.

The defendants sentence was harsh and excessive...............................................44

CONCLUSION.45

ii

TABLE OF AUTHORITIES
Cases
Ake v. Oklahoma, 470 U.S. 68 (1985)..................................................................23, 26, 29, 30
Bordenkircher v. Hayes, 434 U.S. 357 (1978)........................................................................ 44
Chambers v. Mississippi, 410 U.S. 284 (1973).......................................................................23
Cuyler v. Sullivan, 446 U.S. 335 (1980)..................................................................................30
Dufel v. Green, 84 N.Y.2d 795 (1995)....................................................................................23
Enright v. Siedlecki, 59 N.Y.2d 195 (1983)............................................................................29
Garrido-Valdez v. Poole, 384 F. Supp. 2d 591 (2005)............................................................22
In re Noel O., 19 Misc.3d 418 (2008)......................................................................................26
Irvin v. Dowd, 366 U.S. 717 (1961)........................................................................................22
Jaklitsch v. Finnerty, 96 A.D.2d 690 (3rd Dept., 1983)..........................................................23
Maryland v. Craig, 497 U.S. 836 (1990).................................................................................26
Miranda v. Arizona, 384 U.S. 436 (1966)...............................................................................34
People v. Abdullah, 134 A.D.2d 503 (2nd Dept., 1987)..........................................................31
People v. Adessa, 89 N.Y.2d 677 (1997).................................................................................32
People v. Albro, 52 N.Y.2d 619 (1981)...................................................................................34
People v. Alfano, 131 Misc. 2d 843 (1986).............................................................................40
People v. Alford, 33 A.D.3d 1014 (2nd Dept., 2006)..............................................................30
People v. Andrews, 13 A.D.3d 1143 (4th Dept., 2004)...........................................................34
People v. Atkinson, 21 A.D.3d 145(2nd Dept., 2005).............................................................43
People v. Balsano, 51 A.D.2d 130 (4th Dept., 1976)..............................................................22
People v. Butts, 175 Misc. 2d 709 (1998)................................................................................34

iii

People v. Carter, 21 A.D.3d 1295 (4th Dept., 2005)...............................................................43

People v. Centano, 76 N.Y.2d 837 (1990)...............................................................................34
People v. Centolella, 61 Misc.2d 723 (1969)...........................................................................31
People v. Cintron, 75 N.Y.2d 249 (1990)................................................................................26
People v. Cohen, 22 Misc.2d 722 (1960).................................................................................33
People v. Connolly, 63 A.D.3d 1703 (4th Dept., 2009)..........................................................32
People v. Daddona, 81 N.Y.2d 990 (1993)..............................................................................38
People v. David, 234 A.D.2d 787 (3rd Dept., 1996)...............................................................39
People v. De Maio, 243 N.Y. 588 (1926)................................................................................30
People v. Delgado, 80 N.Y.2d 780 (1992)...............................................................................44
People v. Ford, 66 N.Y.2d 428 (1985).....................................................................................42
People v. Foster, 60 Misc. 3 (1908).........................................................................................33
People v. Foy, 32 N.Y.2d 473 (1973)......................................................................................27
People v. Gaines, 136 A.D.2d 731(2nd Dept., 1988)..............................................................37
People v. Gillespie, 35 A.D.3d 880 (2nd Dept., 2006)............................................................37
People v. Gray, 86 N.Y.2d 10 (1995)......................................................................................37
People v. Griffin, 121 A.D.2d 927 (1st Dept., 1986)...............................................................39
People v. Griffin, 9 A.D.3d 841 (4th Dept., 2004)..................................................................39
People v. Hardy, 223 A.D.2d 839 (3rd Dept., 1996)...............................................................34
People v. Hartman, 64 A.D.3d 1002 (3rd Dept., 2009)...........................................................27
People v. Henriquez, 3 N.Y.3d 210 (2004)..............................................................................22
People v. Hill, 5 N.Y.3d 772 (2005)........................................................................................32
People v. Hines, 97 N.Y.2d 56 (2001).....................................................................................37

iv

People v. Howard, 91 A.D.2d 1127 (3rd Dept., 1983)............................................................37

People v. Huston, 88 N.Y. 2d 400 (1996)................................................................................32
People v. Iddings, 23 A.D.3d 1132 (4th Dept., 2005).............................................................35
People v. Johnson, 160 A.D.2d 813 (2nd Dept., 1990)...........................................................34
People v. Jordan, 9 A.D.3d 792 (3rd Dept. 2004)...................................................................40
People v. Klumbach, 202 A.D.2d (4th Dept., 1994)................................................................35
People v. Ledwon, 153 N.Y. 10 (1897)...................................................................................37
People v. Liverpool, 262 A.D.2d 425 (2nd Dept., 1999).........................................................39
People v. Mana, 292 A.D.2d 863 (4th Dept., 2002)................................................................23
People v. Marrow, 301 A.D.2d 673 (3rd Dept., 2003)............................................................34
People v. Mencher, 42 Misc. 2d 819 (1964)............................................................................23
People v. Nash, 236 A.D.2d 845 (1997)..................................................................................32
People v. Nova, 198 A.D.2d 193 (1st Dept., 1993).................................................................34
People v. Oskroba, 305 N.Y. 113 (1953).................................................................................27
People v. Payne, 41 A.D.3d 512 (2nd Dept., 2007..................................................................34
People v. Peter, 22 Misc.3d 713 (2008)...................................................................................32
People v. Quigley, 70 A.D.3d 1411 (4th Dept., 2010)............................................................37
People v. Ramos, 27 A.D.3d 1073 (4th Dept., 2006)..............................................................34
People v. Roraback, 242 A.D.2d 400 (3rd Dept., 1997)..........................................................31
People v. Rosario, 224 A.D.2d 723 (2nd Dept., 1996)............................................................43
People v. Sackes, 11 A.D.3d 364 (1st Dept. 2004)..................................................................40
People v. Sanchez, 61 N.Y.2d 1022 (1984).............................................................................39
People v. Sanders, 169 Misc. 2d 813 (1996)...........................................................................34

People v. Schompert, 19 N.Y.2d 300 (1967)...........................................................................35

People v. Singh, 190 A.D.2d 640 (1st Dept., 1993)................................................................29
People v. Spirles, 275 A.D.2d 980 (4th Dept., 2000)..............................................................31
People v. Stabell, 270 A.D.2d 894 (4th Dept., 2000)..............................................................23
People v. Tai, 39 N.Y.2d 894 (1976).......................................................................................42
People v. Thompson, 177 Misc.2d 803 (1998)........................................................................24
People v. Vale, 133 A.D.2d 297 (1st Dept., 1987)............................................................23, 29
People v. Wrotten, 14 N.Y.3d 33 (2009)...........................................................................23, 25
People v. Wrotten, 60 A.D.3d 165 (1st Dept., 2008)...............................................................15
People v. Wrotten, 73 A.D.3d 637 (1st Dept., 2010).........................................................23, 25
Selkowitz v. Nassau County, 45 N.Y.2d 97 (1978).................................................................23
Spencer v. State of Texas, 385 U.S. 554 (1967)......................................................................22
Stanley v. Justices of Supreme Court, 214 A.D.2d 741 (2nd Dept., 1995).............................29
Stevens v. Auburn Memorial Hosp., 286 A.D.2d 965 (4th Dept., 2001)..........................27, 28
United States v. Abbas, 74 F.3d 506 (1996)............................................................................22
Vigilant Ins. Co. v. Rippner Elec. Const. Corp., 196 A.D.2d 494 (2nd Dept., 1993).............23
Washington v. Texas, 388 U.S. 14 (1967).........................................................................22, 23

vi

Statutes and Other Authority

Agriculture and Markets Law 353-a.................................................................................7, 41, 42
CPL 190.20...........................................................................................................................32, 33
CPL 200.50.................................................................................................................................33
CPL 210.20.................................................................................................................................32
CPL 210.35.................................................................................................................................32
CPL 280.10.................................................................................................................................29
CPL 290.10...........................................................................................................................36, 37
CPL 330.30.................................................................................................................................40
CPL 450.30.................................................................................................................................44
CPL 470.15.................................................................................................................................44
CPL 60.45...................................................................................................................................34
CPLR 4518...................................................................................................................................38
Judiciary Law 2-b...............................................................................................10, 23, 24, 25, 26
NY Const. Art. 1, 6.........................................................................................................22, 26, 30
Penal Law 15.05....................................................................................................................42, 43
Penal Law 120.25..............................................................................................................7, 41, 42
Penal Law 145.00..........................................................................................................................7
Penal Law 145.05....................................................................................................................7, 37
Penal Law 145.10....................................................................................................................7, 41
Penal Law 150.10....................................................................................................................7, 41
Penal Law 210.45..........................................................................................................................7
Public Health Law 3382................................................................................................................7

vii

U.S. Const. Amend. 14..................................................................................................................22

U.S. Const. Amend. 6........................................................................................................22, 26, 30
U.S. Const.Amend. 8.....................................................................................................................44

Treatises, etc.
Giannelli, Ake v. Oklahoma:
The Right to Expert Assistance in a Post-Daubert, Post-DNA World,
89 Cornell L. Rev. 1305 (2004).....................................................................................................30

viii

PRELIMINARY STATEMENT
By indictment filed August 22, 2008, the Cayuga County Grand Jury charged Chad E.
Towsley, the defendant-appellant herein, with the following, under a nine-count indictment
(A14-16)1:
1. Arson Third Degree, in violation of Penal Law 150.10(1);
2. Criminal Mischief Second Degree, in violation of Penal Law 145.10;
3. Reckless Endangerment First Degree, in violation of Penal Law 120.25;
4. Aggravated Cruelty to Animals, in violation of Ag & Markets Law 353-a(1);
5. Making a Punishable False Written Statement, in violation of Penal Law
210.45;
6. Making a Punishable False Written Statement, in violation of Penal Law
210.45;
7. Unlicensed Growing of Cannabis, in violation of Public Health Law 3382;
8. Criminal Mischief Fourth Degree, in violation of Penal Law 145.00(1);
9. Criminal Mischief Third Degree, in violation of Penal Law 145.05(2).
The defendant was arraigned with counsel on September 2, 2008 and pleaded not guilty
to the indictment. (Arraignment 1-4).
Trial commenced on August 3, 2009. (Trial 15-244). At the end of the trial, the jury
convicted the defendant of the following: Arson Third Degree, Criminal Mischief Second

References to the Appendix will be prefaced with an A, followed by the page number[s]. References to
transcripts will be to the nature of the matter before the court as described in the transcripts caption (e.g.,
Arraignment, Huntley, Trial, Sentencing, etc.), together with the page number. Where a transcript has no
distinguishable caption, or two transcripts have the same caption, the reference will be preceded by a date (e.g.,
11/18/08 Motion, 02/03/09 Motion, etc.).

ix

Degree, Unlicensed Growing of Cannabis, Criminal Mischief Fourth Degree and Criminal
Mischief Third Degree. (A5-6, 200-201; Trial 1321-1324).
On September 29, 2009, the Cayuga County Court (Fandrich, J.) sentenced the defendant
to a term of imprisonment as follows, all to be served concurrently:
Arson Third Degree: an indeterminate sentence of four to twelve years;
Criminal Mischief Second Degree: an indeterminate sentence of two and onethird to seven years;
Unlicensed Growing of Cannabis: one year;
Criminal Mischief Fourth Degree: one year
Criminal Mischief Third Degree: one and one-third to four years.

In addition, the court imposed restitution and an order of protection. (A5-13; Sentencing
23-24).
By written notice dated October 1, 2009, the defendant appealed to this court. (A2-3).

QUESTIONS PRESENTED
I.
II.

Did trial court deny the defendant his right to a fair trial?
Was the integrity of the grand jury impaired, requiring dismissal of the indictment?

III.

Were the defendants statements to law enforcement involuntary and subject to

suppression?

IV.

Was the trial evidence legally sufficient to establish the offense of Criminal Mischief
Third Degree?

V.

Did the trial court erred in refusing to give the jury a circumstantial evidence charge?

VI.

VII.

Were the guilty verdicts concerning the fire inconsistent with the acquittals requiring that
they be set aside on repugnancy grounds?
Was the defendants sentence harsh and excessive?

xi

STATEMENT OF FACTS
Investigation and Indictment
On May 30, 2008, emergency officials responded to a house fire at 923 Poplar Ridge
Road in Cayuga County, New York. (Trial 320-324).
The residents of the property were Chad E. Towsley, the defendant herein, and his thengirlfriend, Julianne Rieks (Trial 374, 948).

F. Patrick Miller owned the property. (Trial 948,

1064-1066).
Towsley was a former chef (Trial 950, 954). Rieks was a bartender (Trial 948). The two
had been romantically involved since August 2006 and had cohabitated since October of that
year. (Trial 950, 952).
However, Towsleys excessive drinking had, according to Rieks, caused their
relationship to deteriorate over time. (Trial 962). According to Rieks, Towsley had, at times,
exhibited what can only be described as unusual behaviors while intoxicated. They included
stripping off his clothes in public, jumping into a dunking pond at a fair, throwing a chair
through a window and threatening to break into a house in Tompkins County so he could go to a
jail with video games. (Trial 963-964, 977-978). On another occasion, Towsley accidentally
locked himself out of the home while drunk and broke the basement door attempting to get back
in the residence. (Trial 1052).
In another incident, or about August 8, 2007, according to Rieks, Towsley was
intoxicated, the parties argued and Towsley threw a chair through the kitchen window. (Trial
963-965).

Shortly after that incident, Towsley entered rehab for alcohol addiction. (Trial 968-969,
1051, 1102, 1104-1105). However, after getting out, he continued to drink, up to and including
the day of the fire. (Trial 1105-1107).
On the morning of the fire, Towsley had begun drinking from a large bottle of rum.
(Huntley 48, 54, 57-58; Trial 976, 1050-1051).

He and Rieks had an altercation and she left the

home. (Trial 970-980, 1006-1008, 1050-1051).

By late afternoon, shortly before the fire, there was only an inch or two of liquor left in
the bottle of rum.

(Huntley 107).

By then, Towsley was, according to some witnesses,

extremely intoxicated (Trial 382-383) and blotto...out of his head. (Trial 1121).

At one

point, he was walking around outside, naked, while ranting and raving. (Huntley 106-107).
At approximately 6:08 pm that evening, Cayuga County 911 received two calls about a
fire at the home of Towsley and Rieks.

The first caller was Linda Van Buskirk. Brendan

Montgomery made the second call. (Trial 361-362).

Towsley was home at the time of the fire. (Trial 324, 328). Rieks was not. (Trial 325,
1006-1008).
At about the time Montgomery called 911, he saw Towsley standing by the road,
shirtless, looking toward the house and appearing pretty shocked. (Trial 356-357).
Montgomery stayed with Towsley until the fire department arrived. While waiting at the
scene, Towsley mentioned to Montgomery that his hand was burned. (Trial 358).
Thomas Yale, a neighbor, also stopped at the scene before the fire department arrived.
He asked Towsley what happened and Towsley mentioned an unattended toaster oven.

(Trial

424-425). At this point, the west side of the house was fully engulfed in flames. (Trial 429).

The first law enforcement officer to arrive on the scene was Cayuga County Sheriffs
Deputy Joseph Ryan. (Huntley 87).

Ryan asked Towsley what happened.

Towsley said he

was home alone, he was hungry, and he had put a sandwich in the toaster oven and then must
have fallen asleep. Towsley told Ryan that the next thing he knew he was awakened by the
sound of a fire alarm. Towsley said that he tried to throw the toaster oven out of the window, but
was unable to do, and the fire spread. Towsley could not get to a telephone, he told Ryan, so he
ran outside and tried to flag down help. (Huntley 88-89; Trial 329).
During the discussion, Ryan noticed that Towsley had a burn on his left hand. (Huntley
88-89; Trial 329-330).
Ryan could also smell the odor of alcohol on Towsleys breath. (Huntley 96; Trial 330).
While Ryan observed no problems with Towsleys speech or ability to walk, Towsley was a
little glassy eyed. (Trial 331-332). This was not the first time that Ryan had encountered
Towsley and Ryan was aware that he had a drinking problem. (Huntley 96; Trial 341-342).
Because of Towsleys condition, Ryan had him submit to an alcosensor test. (Huntley 89; Trial
331). The test result was either .18 or .17. (Huntley 95; Trial 548-549).
While Ryan was investigating the fire scene, he learned that Towsley was attempting to
get back into the burning structure. In response, Ryan placed Towsley in the back of his patrol
car. (Huntley 89-90).

Once in the back of the car, Towsley was locked in. (Huntley 91). At

the Huntley hearing, Ryan denied that Towsley was under arrest. (Huntley 93). Towsley was
not handcuffed. (Huntley 30). Ryan did not read Towsley his Miranda rights. (Huntley 100).
While on the scene, Ryan found some marijuana plants. Towsley admitted to Ryan that
they were his. (Huntley 91; Trial 332-333). At trial, the evidence indicated that both Towsley
and Rieks were marijuana users. (Trial 1042).

Several other individuals spoke to Towsley about the fire that evening while at the scene.
Sarah Miller, an emergency medical technician (EMT), provided medical assistance to
Towsley.

(Huntley 40-42; Trial 541, 544-545, 551). While Miller treated Towsley, he told her

that he had fallen asleep, woken up and discovered a fire in the toaster oven.

(Trial 546).

During the time Miller was with Towsley, she observed the strong odor of alcohol.
(Huntley 42; Trial 544). Towsleys eyes were bloodshot and his pupils were constricted. (Trial
542-543).

He told her that he had been drinking and had used marijuana the day before. (Trial

543).
Detective Brian Schenck, of the Cayuga County Sheriffs Department, also spoke to
Towsley at the scene.
578, 608).

(Trial 576-577). Towsley was in the back of Ryans patrol car. (Trial

It was approximately 8:00 pm (Id.), or nearly two hours after the fire was called in

to 911. (Trial 361-362).

Schenck could tell that Towsley was under the influence of alcohol. (Huntley 31; Trial
578, 609).

He could smell the odor on Towsley and saw that Towsley had glassy eyes.

(Huntley 32; Trial 609). However, he believed that Towsley was coherent. (Trial 579).
Schenck asked Towsley what had happened and Towsley again stated he had fallen
asleep and awoken to a fire in the kitchen. (Huntley 31; Trial 578). Schenck did not take a
written statement from Towsley, he said at trial, because he did not believe Towsleys account.
(Trial 610). Schenck did not read Towsley his Miranda rights. (Huntley 34).
Josh Nalley, a career firefighter and part-time fire investigator for Cayuga Countys
Office of Emergency Management also interviewed Towsley while Towsley was in the police
car. (Huntley 8-10, 13-16, 92-93; Trial 621-623). Towsley again stated that the fire had begun

in the toaster oven (Trial 628), that he tried to remove the oven and that he burned his hand doing
so (Trial 631). Nalley did not believe Towsley to be intoxicated. (Trial 624).
The residence was damaged by the fire. The living room and bedroom were heavily
damaged and the ceiling was gone in both rooms. (Trial 342-343). A family cat perished in the
fire. (Trial 1025). Numerous items of personal property were destroyed. (Trial 1023-1026).
After questioning, Towsley was released to the custody of his mother, Linda Alexander.
(Huntley 93). However, he remained agitated. He jumped out of Alexanders car and ran into
some nearby woods. (Huntley 54-55; Trial 1124-1125).
Approximately five hours after the fire, a family friend, Douglas Bates, encountered
Towsley in his (Bates) barn. (Huntley 111; Trial 389). Bates is an attorney. (Huntley 103;
Trial 372). According to Bates, when he spoke with Towsley in the barn, the defendant was
very intoxicated (Trial 389-390) and was drinking beer. (Huntley 111-112; Trial at 401).
While in the barn Bates asked Towsley about the fire and Towsley again said it started in
a toaster oven. (Huntley 114-115; Trial 389-390). Bates and Towsley each drank beer during
the conversation. (Trial 401, 402).
While Bates and Towsley were speaking, several sheriffs deputies came to the barn to
question them.

(Trial 389-390).

Schenk spoke to Bates and took a written statement. (Trial 390). Separately, Inv. Joseph
Weeks questioned Towsley. (Huntley 36, 38). Weeks observed that Towsley was drinking and
could smell alcohol on Towsleys breath. (Huntley 37; Trial 453).
Weeks asked Towsley about the fire. Towsley again stated he woke up to a fire in the
kitchen, again mentioned the toaster oven and speculated he had been cooking a sandwich.
Weeks told Towsley that their investigation indicated that the toaster oven was not plugged in.

Towsley, Weeks said, responded it must have been a dream then. (Huntley 35-38; Trial 456457).
Weeks continued to question Towsley about the fire. According to Weeks, Towsley
became agitated during questioning, but denied setting the fire. (Huntley 37; Trial 454-455).
Weeks never read Towsley his Miranda rights and never took a written statement.
(Huntley 39; Trial 456-457). Weeks did not take a written statement because he did not believe
Towsley. (Trial 460).
Weeks did not arrest Towsley that evening because, as Weeks testified at trial, he had
not committed a crime at that point. (Trial 461).
After the police left, Bates invited Towsley to spend the night at his house. He did so
because Towsley was so drunk. (Trial 391).
When asked at trial to describe how intoxicated Towsley was on the day of the fire on a
scale of one to ten, Bates described him as close to ten. (Trial 397).
During the fire investigation, several issues raised suspicions among the police and fire
personnel.
One firefighter, Kevin Murphy, observed that there was very little fire in the kitchen
itself, but that all the burners were turned on. (Trial 476-479). Murphy also saw that the fire
appeared to be worse in other areas of the residence, including the living room and bedroom.
(Trial 475-477, 484).
Upon inspecting the house on May 30, Nalley noticed that there was no fire in the kitchen
area. Therefore, Nalley decided to call in additional fire investigators. (Trial 638). On May 31,
Nalley, several investigators from the sheriffs department and state fire investigators returned to
the scene and continued the investigation. (Trial 638).

As part of the investigation, they gathered samples and items of evidence. (Trial 492502, 508-568). The items included cigarettes (Trial 497), a Bacardi alcohol bottle (Trial 499) and
the toaster oven (Trial 496).
In addition, they utilized a dog trained to detect ignitable liquids. (Trial 860-944). The
dog, it is alleged, indicated or hit the presence of ignitables in several areas of the home, in
the living room and master bedroom. (Trial 893-908).

However, in a subsequent laboratory

analysis none of the samples tested had a positive result for ignitable liquids. (Trial 516-517).
Based on the dog, and other factors, law enforcement officials theorized that the fire
originated in two rooms, the living room and the master bedroom. (Trial 717, 755, 763).
Ultimately, and largely through the use of expert witnesses and investigators, law
enforcement officials decided that they had eliminated every factor relating to the cause or origin
of the fire except for the human factor. (Trial 694-695, 739, 767-773, 909-922).
Following the investigation, by indictment filed August 22, 2008, the Cayuga County
Grand Jury charged Towsley with the following crimes:
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.

Arson Third Degree, in violation of Penal Law 150.10(1);

Criminal Mischief Second Degree, in violation of Penal Law 145.10;
Reckless Endangerment First Degree, in violation of Penal Law 120.25;
Aggravated Cruelty to Animals, in violation of Ag & Markets Law 353-a(1);
Making a Punishable False Written Statement, in violation of Penal Law
210.45;
Making a Punishable False Written Statement, in violation of Penal Law
210.45;
Unlicensed Growing of Cannabis, in violation of Public Health Law 3382;
Criminal Mischief Fourth Degree, in violation of Penal Law 145.00(1);
Criminal Mischief Third Degree, in violation of Penal Law 145.05(2).

Counts One through Four stemmed from Towsleys alleged involvement in the fire.
Counts Five and Six were based on Towsley allegedly lying about the cause of the fire in
paperwork filed with the Cayuga County Emergency Management office. Count Seven was the

result of the marijuana plants found on the premises. Count Eight alleged that Towsley damaged
Rieks personal property on the day of the fire. Count Nine was based upon a separate incident,
allegedly occurring in August 2007 when Towsley allegedly broke a kitchen window. (A14-16).
That incident came to light during the investigation of the fire. (A52).
Towsley was arraigned with counsel and pleaded not guilty to the indictment.

The

court placed the matter on the motion calendar. (Arraignment 1-4).

Pretrial Proceedings and Motions
During the course of pretrial proceedings, the defense filed motions for various forms of
relief, including the following.
Motion for Dismissal of Indictment
As part of its pretrial motions, the defendant moved the court for dismissal of the
indictment upon the ground of grand juror bias. The basis for this motion was that the grand jury
foreperson knew Towsley personally and did not care for him. (A86, 99-100).
The prosecution opposed the motion, alleging that the foreperson did not participate in
the grand jurys deliberation and vote. (A93).
The defense countered that, if the foreperson did not participate and vote on the
indictment, the foreperson was unauthorized to state a true bill and the acting foreperson should
have signed the indictment. However, defense counsel noted, the foreperson had, in fact, signed
the indictment. (A86, 99-100).
The court denied the motion to dismiss the indictment, finding that the foreperson had
disclosed his familiarity with the defendant to the district attorney and been excused from
deliberating or voting on the indictment. (A123-124; 02/03/09 Motion 4).
Motions Regarding an Expert Defense Witness

Motion for Testimony of Expert via Closed-Circuit

The defense filed a motion for an order allowing the testimony of the defendants expert
at trial via closed-circuit television. (A103-116).
In support of its requests, the defense noted that the prosecution acknowledged that they
have only a circumstantial case with regard to Mr. Towsley.... and that much of the
prosecutions evidence rested upon alleged expert witnesses. Therefore, the defense argued,
[a]bsent an expert to contradict the erroneous findings of [the prosecutions experts], Mr.
Towsley would be at a severe disadvantage, with the probability of conviction almost certain.
(A107).

The defense counsel described in detail Towsleys unsuccessful efforts to obtain a

local arson expert.

According to defense counsel, the only expert it could locate was one in

Texas. (A101).

That expert, Gerald Hurst, was a consulting chemist, a member of the

innocence project, and specialized in the determination of the cause and origin of fires and
explosions.

(A106-116).

Hurst had reviewed the prosecutions fire investigation reports and related documents.
According to Hurst, there were multiple flaws with the prosecutions case, which he laid out in
detail in a report annexed to the moving papers. (A111-116).

These flaws, Hurst said, included

a failure to eliminate electrical causes (A115) and a failure to consider partial building collapse
as an explanation for the burn patterns (A112). Furthermore, Hurst would testify as to the
prosecutions use of a canine to detect ignitables and the fact that such dogs routinely indicate
the presence of hydrocarbons at the scene of accidental fires. (A 115).
Hurst would testify free, if he could testify via closed-circuit television, due to a recent
liver transplant. (A107).

The prosecution opposed the application for closed-circuit testimony.

prosecution did not deny that the case was mostly circumstantial.

In doing so, the

Instead, the assistant district

attorney argued that there was no authority for closed-circuit testimony. (A118-121).
During oral argument, the defense argued that Judiciary Law 2-b (3) authorized the
court to allow closed-circuit testimony. (03/31/09 Motion 3-4).
However, the court rejected the request, holding that there was no statutory authority
allowing such testimony. (03/31/09 Motion 7).
Motion for Reimbursement of Experts Travel Expenses
Thereafter, the defendant located another expert, also in Texas.

This expert, Mark

Goodson, was a professional engineer. Goodson, like Hurst, submitted a report finding multiple
flaws in the work of the prosecutions experts and investigators and suggesting alternate theories
for the fire. (A129-132).
Goodson was willing to testify without compensation, if he was reimbursed for travel
expenses. The defense made a motion for payment of said expenses. (Id.)
The court granted the defenses application for reimbursement of expenses. In doing so,
the court noted its decision was based in part upon Goodsons report, setting forth his expert
opinion. (A135-136).
Motion to Suppress Defendants Statements
As part of its omnibus motion, the defense moved for an order suppressing any
statements attributed to the defendant. (A36). In response, the court scheduled a Huntley
hearing. (A81).

10

The hearing commenced January 2, 2009 and continued on January 5. Deputies Nalley,
Schenck, Weeks and Ryan testified for the prosecution. (Huntley 8-40, 85-102). The defense
called Miller, Bates and Alexander. (Huntley 40-77, 103-117).
At the close of the hearing, the defense argued that Towsley had been in custody during
the time that he was questioned in the back of the patrol car. (Huntley 117). The defense further
submitted that Towsley was too intoxicated (to the level of mania) to make a voluntary
statement. (Huntley 118-119).
The prosecution conceded that there was no doubt that Towsley was intoxicated during
questioning, but alleged that Towsley was not so intoxicated as to render his statements
inadmissible. The prosecution also argued that Towsley was not in custody during questioning.
(Huntley 122-125).
Ruling from the bench, the court found that Towsley was not in custody at the time his
gave his statements to the police. The court also found that Towsley was not so intoxicated as to
render the statements he gave to the various public officials to be involuntary. Therefore, the
court denied the defense motion to suppress. (Huntley 127).
Motion to Preclude the
Results of the Fire Investigators Canine
As part of the pretrial motions the defense moved for an order suppressing the results
achieved by the [canine trained in fire detection] during the course of the investigation, or that,
in the alternative, the court hold a hearing on whether the prosecution would be allowed to use
such evidence at trial. (A31-32).
This motion was in response to the fact that law enforcement officials had used dogs in
an effort to detect ignitable liquids at the fire scene.

11

According to the defense, testimony as to the canine alerts was unduly prejudicial for
several reasons. They included the fact that, even though the dogs allegedly hit on the
presence of ignitables at the scene of the fire, subsequent lab tests found no accelerants at the
scene.

Therefore, the defense asked that the court preclude

(A36; 11/18/08 Motion 3).

testimony regarding the dogs or, in the alternative, to hold a Frye hearing. (11/18/08 Motion 3).
The prosecution opposed both preclusion/suppression and a Frye hearing, stating that the
use of a trained canine constituted an investigative, rather than scientific, procedure.

(A51;

11/18/08 Motion 4).

Following oral argument on the issue, the court sided with the prosecution and ruled that
a Frye hearing was not necessary. Therefore, it denied the request. (11/18/08 Motion 4).
Following disposition of all pretrial motions, including the ones described above, the
matter came on for trial.
Trial Proceedings
Trial commenced on August 3, 2009, with jury selection (Trial 15-244) and opening
statements were given the next day (Trial 282-318).
During trial, the court ruled against the defendant in several key areas.
Results of the Fire Investigators Canine
Prior to first witness, the defense renewed its motion to preclude evidence about the dog
unless and until a Frye hearing was held. The court again denied the motion. However, it also
held that the prosecution would be required to lay down a proper foundation for the admission
of the canine evidence. (Trial 250-251).
During its direct case, the prosecution called a number of expert witnesses to testify about
the fire: Ronald Stanbro, a forensic scientist with the New York State Police Crime Laboratory,

12

(Trial 502-531); Dale Moone, a fire protection specialist with the New York State Office of Fire
Prevention and Control (Trial 721, 773); and James Ryan, a fire investigator with the Office of
Fire Prevention and Control (Trial 860-944). All three men investigated the fire at issue. (Trial
502-531, 682, 860-944). Ryan was the investigator who utilized a dog in an attempt to locate
ignitables at the scene. (Trial 864).
Prior to Ryans testimony, both Stanbro and Moone testified as to issues with canine
reliability in fire detection.
On cross-examination, Stanbro was asked about the use of dogs to detect accelerants or
ignitable liquids at fire scenes. Stanbro said that he was aware of reports that dogs were better
able to detect such substances than laboratory equipment.

However, he said, it was his

understanding that if a dog alerts for an accelerant but a laboratory does not find it, the result
from the dog is a false positive. (Trial 522-523). He also stated on re-direct that, while he was
a big believer in the dogs, he knew that they would sometimes hit on substances that are not
ignitable liquids. (Trial 526-527).
Stanbro testified that he performed testing on items of evidence collected at the Towsley
residence. None of the samples he tested had a positive result for ignitable liquids. (Trial 516517).
Similarly, on cross-examination, Moone, himself a canine handler, admitted that National
Fire Protection Association guidelines state that any canine alert unconfirmed by laboratory
analysis should not be considered validated. (Trial 781-782).
Despite this testimony, and over the objection of defense counsel, the court allowed
James Ryan to testify that, in his opinion as an expert in the field of fire investigation, his dog
is a hundred percent reliable in locating ignitable liquids. (Trial 891-893).

13

Following the courts ruling, Ryan testified as to various locations in the subject premises
where the dog indicated the presence of ignitables. (Trial 893-908).
Loss of the Defenses Expert Witness
On Wednesday, August 5, during the prosecutions direct case, defense counsel notified
the court that its expert witness, Mark Goodson, had sent a text message that said could not fly
up...at cardiologist, ticker on the blink... (Trial 531). Defense counsel had previously provided
the court with both Goodsons resume and trip itinerary. (A196-199; Trial 535).
The court directed defense counsel to contact Goodson to determine when he might be
able to appear at trial and observed that, if Goodson could appear on Friday, I dont see that as
impossible [but] beyond that Im not too sure what I am going to do. (Trial 534).
On Friday, August 7, defense counsel reported to the court that it had notified Goodson
that the court would like medical documentation. The defense also noted it was considering
requesting a brief adjournment of the proceedings. Defense counsel also indicated that, if
Goodson refused to appear, that it was considering several options, including moving for a
mistrial. (Trial 827- 828).
In response, the prosecution said that it would oppose both a lengthy continuance and a
mistrial. (Trial 829-834).
The court said the matter was premature and that it would consider the applications at the
appropriate time. However, the court then went on to cite several cases that it believed stood for
the proposition that a mistrial or continuance would be improper. (Trial 834-838). In doing so,
the court noted that it had a duty to consider alternatives...to mistrial... (Trial, 835).
Later in the day, defense counsel reported it had again attempted to contact Goodson,
with no response. (Trial 945).

14

Renewal of Motion for Electronic Testimony

At the end of the day on August 7, defense counsel reported that Goodson had sent a text
message stating that he was unavailable to appear in person and asking to testify via telephone.
(Trial1029-1030). In response, the court stated that Im not going to consent to departing from
the established laws of evidence applicable to a criminal trial and have him testify by phone.
(Trial 1033).
On August 10, shortly before the close of the prosecutions direct case, defense counsel
advised the court that it had a note from an emergency room regarding Goodson. (Trial 1037).
Defense counsel also described efforts to locate another expert witness for trial. (Trial 10371038).
Prior to the commencement of the defenses direct case, defense counsel updated the
court on its unsuccessful efforts to locate Goodson and/or another expert witness.

The defense

also presented the court with a note from a doctor that stated please excuse patient from work
through Tuesday, August 11. (A195). The defense reiterated that it would consider a motion
for a mistrial if the expert witness could not be located. (Trial 1077-1079).
In denying the application for television or telephone testimony, the court made specific
mention of authority which, the court believed, prohibited it from allowing such testimony,
including People v. Wrotten, 60 A.D.3d 165 (1st Dept., 2008), and the confrontation clauses of
the federal and state constitutions. (Trial 1166-1167).
Motion for a Continuance or Mistrial
At the close of its case, the defense moved for a continuance or mistrial, based upon its
efforts to secure an expert witness and the unavailability of its expert during the trial.
According to the defense, once Goodson seemed unable to testify, the defense attorney and

15

Goodson both attempted to locate another expert to testify during that week, but to no avail.
(A193; Trial 1153-1154, 1165-1166).
The defense also reminded the court that it had asked the court to allow testimony by
closed-circuit television and been rebuffed.

Finally, the defense counsel noted that the

prosecution had presented testimony from several expert witnesses as to the origin of the fire.
Without a witness of its own to rebut that testimony, counsel said, Towsley would be hopelessly
prejudiced...through no fault of [his own]. (Trial 1155).
The prosecution opposed the continuance and mistrial motions. (A142-148; Trial 11561164).
The court denied the defenses application. (Trial 1169-1170).
Trial Motion for Dismissal
Following the close of the prosecutions proof, the defense counsel made a motion for a
trial order of dismissal. (Trial 1067-1075).
Criminal Mischief Third Degree
The defense argued in particular that Count Nine (Criminal Mischief Third Degree) had
not been established because the prosecution had not proven beyond a reasonable doubt that
Towsley caused more than $250.00 in damage to the kitchen window during the 2007 incident
described in the indictment.

(Trial 1067-1068).

In an effort to prove the damages at issue the prosecution had called David Marion, a
self-employed carpenter, and Rieks.
Marion testified that he made several repairs to the premises in August of 2007.

He had

done so at the request of Rieks. One of the repairs was to the kitchen window. (Trial 363-364).

16

Marion did not know what it cost to repair the window. At one point, he guessed it was
$250.00 or $270.00. He also guessed that he had spent $100.00 in labor on the repair. (Trial
366).

However, he could not state the amounts with certainty and suggested that he would need

to locate an invoice from the window supplier to be certain. (Trial 368).

Similarly, when asked how much she paid Marion to repair the window Rieks said that
she believe[d] it was $300.00. (Trial 965). However, she admitted she did not know. (Trial
1053).
Making Punishable False Written Statements
The defense stated that, in regards to Counts Five and Six (Making a Punishable False
Written Statement,) that the documents at issue were not, as a matter of law, punishable false
written statements. (Trial 1068).
Other Charges
The defense argued that the prosecution had failed to meet its burden on Counts One
through Four because it had not ruled out all accidental causes of the fire. (Trial 1068).
In regard to Counts Five and Six, the court granted the defense motion and dismissed the
two counts of Making a Punishable False Written Statement. (Trial 1073).
However, the denied the motions as to the other counts, including the Criminal Mischief
Third charge. (Trial 1075, 1170-1171).
Following the close of the defense case, and prior to the jury charge, the defense renewed
its motion to dismiss to Count Nine. It was denied again. (Trial 1172-1173).
Requests to Charge the Jury
The defense requested a circumstantial evidence charge to the jury. (Trial 1174).

17

The prosecution opposed, claiming that at least some direct evidence existed. (A141142; Trial 1174-1175).
The only direct evidence cited by the prosecution was the testimony of Wesley Percy, a
convicted felon. (Id.).

Percy had testified that, in June of 2008, he spoke with Towsley while

both were incarcerated in the county jail. Towsley was jailed on the charges at issue in this case
and Percy was there on a conviction for Attempted Sexual Abuse First Degree, involving a
thirteen-year-old girl. (Trial 403-406, 417, 418). Percy said that Towsley admitted to him that
on the day of the fire, he and Rieks had argued and she left. According to Percy, Towsley told
him that he was upset and drinking and set a desk on fire in the living room with a cigarette
lighter. Percy also said that Towsley claimed he tried to put the fire out after it started but was
unable to do. (Trial 407-408).
In explaining his conviction for Attempted Sexual Abuse, Percy had told the jury that he
had a history of sleepwalking and sleeptalking. In addition to the Attempted Sex Abuse charge,
Percy had a number of other criminal convictions, including forgery.

(Trial at 416-418).

Though he refused to discuss (or stated he could not remember) the details of his sex abuse case,
Percy stated that he had a new lawyer and was trying to have the conviction set aside. (Trial
416).
Citing the testimony of Percy, the court agreed with the prosecution and denied the
motion. (Trial 1174-1175).
The Jurys Verdict
After Counts Five and Six were dismissed, and following deliberations, the jury acquitted
Towsley of the following charges: Reckless Endangerment First Degree and Aggravated Animal
Cruelty. The jury convicted Towsley of the other remaining counts: Arson Third Degree,

18

Criminal Mischief Second Degree, Unlicensed Growing of Cannabis, Criminal Mischief Fourth
Degree and Criminal Mischief Third Degree. (Trial 1321-1324; A5-6, 200-201).
After excusing the jury, the court asked the defense if it had anything else. The defense
attorney stated his intent to file a 330 application, based upon differences in some of the
verdicts with regard to the first two [counts] being guilties and then not guilty. (Trial 13241325).
Post-verdict:
Motions, Sentencing and Notice of Appeal
Prior to sentencing, the court ordered, and received, a Pre-Sentence Investigation Report
(PSI) from the Cayuga County Probation Department. The report noted that, because Towsley
had been convicted of Arson Third Degree, incarceration was mandatory, but made no
recommendation as to the length of any such sentence. (PSI 6).
At sentencing, the defense moved to set aside the convictions for Criminal Mischief
Third Degree, Arson Third Degree and Criminal Mischief Second Degree. (Sentencing 2-4).
In regard to Criminal Mischief Third (Count Nine), the defense reiterated its trial motions
for dismissal, namely, that the prosecutions witnesses had failed to establish that the damage in
question exceeded $250.00. (Sentencing 3).
In regards to the verdicts on Arson Third Degree and Criminal Mischief Second Degree,
the defense noted that these counts, along with Count Three (Reckless Endangerment First
Degree) and Count Four (Aggravated Cruelty to Animals) were all premised on Towsley
intentionally setting the fire at issue and, therefore, had the same mens rea. However, the jury
found Towsley not guilty of animal cruelty and reckless endangerment. Therefore, the defense
argued, the guilty verdicts on Arson Third Degree (Count One) and Criminal Mischief Second

19

Degree (Count Two) were repugnant and/or inconsistent and should be set aside. (Sentencing
2-3).
The prosecution argued that the motion to set aside was unpreserved. It also argued that,
as a matter of law, the verdicts were consistent. According to the prosecution, a jury could find
Towsley intentionally started the fire without intending to cruelly kill the animal. Finally, the
prosecution stated, the evidence properly established the elements of Count Nine. (Sentencing 47).
The court denied the defense motion. (Sentencing 7).
The prosecution asked the court to sentence Towsley to the maximum sentence of five
to fifteen on the Arson Third Degree charge (Count One) and asked the court to consider
(without recommending a sentence) whether a consecutive sentence would be appropriate in
regard to Count Nine.

The prosecution also opposed any sentence that would allow the

defendant to enter a shock camp. Finally, the prosecution requested restitution for the victims
and an order of protection (Sentencing 12-17).
The defense noted that, during pretrial proceedings, Towsley had been offered a sentence
on the arson charge of three to nine years incarceration and suggested that the defendant was
now being punished for taking his case to trial.

Defense counsel also cited Towsleys long

history of alcoholism and the fact that he was intoxicated on the date of the fire. Therefore, the
defense stated, the maximum sentence was inappropriate. (Sentencing 17-19).
Towsley spoke on his own behalf. He apologized to Rieks. He also reminded the court
of his many thwarted attempts to locate and present an expert witness at trial. (Sentencing 20).
Following the presentations of the parties, the court (Fandrich, J.) sentenced Towsley to
imprisonment as follows, all to be served concurrently:

20

Arson Third Degree: an indeterminate sentence of four to twelve years;

Criminal Mischief Second Degree: an indeterminate sentence of two and onethird to seven years;
Unlicensed Growing of Cannabis: one year;
Criminal Mischief Fourth Degree: one year
Criminal Mischief Third Degree: one and one-third to four years.
In addition, the court imposed restitution for various the victims (Rieks, Miller and their
insurance companies) and an order of protection for the benefit of Rieks. (Sentencing 23-24;
A5-13). The court also stated it was going to recommend against shock camp. (Sentencing 2223).
By

written

notice

dated

October

21

1,

2009,

Towsley

appealed.

(A2-3).

ARGUMENT
I. The trial court denied the defendant
his right to a fair trial.
The due process clause of the 14th Amendment requires that a person accused of a crime
be afforded a fair trial. U.S. Const. Amend. 14; Spencer v. State of Texas, 385 U.S. 554 (1967);
Irvin v. Dowd, 366 U.S. 717 (1961); People v. Henriquez, 3 N.Y.3d 210 (2004). This due
process requires that the state courts conduct criminal trials in a manner consistent with the
fundamental fairness that is essential to the very concept of justice. Garrido-Valdez v. Poole, 384
F. Supp. 2d 591 (2005).
Like the United States Constitution, the New York State Constitution guarantees a
defendant due process and a right to a fair trial. NY Const. Art. 1, 6.
When an essential element of a fair trial is missing, there must be a reversal, regardless of
whether a fair trial would have produced the same result. People v. Balsano, 51 A.D.2d 130 (4th
Dept., 1976).
The following errors denied the defendant his right to a fair trial and due process under
the federal and state constitutions.
A. The trial court erred in denying the
defendants application to allow
its expert to testify via
closed-circuit television or telephone.

The Sixth Amendment to the United States Constitution provides that a criminal
defendant has a right to present his or her best defense. U.S. Const. Amend. 6; United States v.
Abbas, 74 F.3d 506 (1996). A defendant's right to present his best defense includes a right to
obtain the testimony of witnesses and compel their attendance. Washington v. Texas, 388 U.S. 14
22

(1967).

In fact, the right to call witnesses may sometimes trump state and federal evidentiary

rules and statutes. Id. at 17-23.

This is because [f]ew rights are more fundamental than that of

an accused to present witnesses in his own defense. Chambers v. Mississippi, 410 U.S. 284
(1973).
Generally, a criminal defendant has a right to present expert testimony where appropriate.
People v. Mencher, 42 Misc. 2d 819 (1964).

Such expert testimony is appropriate on an issue

involving professional or scientific knowledge or skill not within the range of ordinary training
or intelligence. Dufel v. Green, 84 N.Y.2d 795 (1995); Selkowitz v. Nassau County, 45 N.Y.2d
97 (1978).

Therefore, expert testimony regarding an arson investigation, or a fire, is often

admissible. People v. Mana, 292 A.D.2d 863 (4th Dept., 2002); People v. Stabell, 270 A.D.2d
894 (4th Dept., 2000); Vigilant Ins. Co. v. Rippner Elec. Const. Corp., 196 A.D.2d 494 (2nd
Dept., 1993); Jaklitsch v. Finnerty, 96 A.D.2d 690 (3rd Dept., 1983).
In addition, where the prosecution has presented expert opinion evidence, a defendant
may have a constitutional right to present his or her own expert to rebut the State's evidence. Ake
v. Oklahoma, 470 U.S. 68 (1985); People v. Vale, 133 A.D.2d 297 (1st Dept., 1987).
In People v. Wrotten, 14 N.Y.3d 33 (2009), the Court of Appeals held that permitting an
adult witness living in another state to testify via real-time, two-way video after finding that
because of poor health he was unable to travel to New York to attend court was within a trial
court's inherent powers under Judiciary Law 2-b, even absent any specific statutory authority
for such procedure. On remand, the Appellate Division, First Department held that the use of
live, two-way video was, in that case, necessary to further the public policy of justly resolving
criminal cases while at the same time protecting the well-being of a witness. People v. Wrotten,
73 A.D.3d 637 (1st Dept., 2010).

23

Pursuant to Judiciary Law 2-b(3), a court of record has the power to devise and make
new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction
possessed by it.
The purpose of this section is to insure that a court has the powers necessary to carry out
its function. People v. Thompson, 177 Misc.2d 803 (1998). As noted above, one function of the
court is insuring a fair trial.
In the case at hand, the trial courts refusal to allow the defendants expert witness to
testify via closed-circuit television denied his right to a fair trial.
The bulk of the evidence against Towsley was circumstantial.

(A107, A118-121).

There were no witnesses to the start of the fire. Towsley was the only person home when it
started. (Trial 324, 325, 328, 1006-1008). The people who called in the fire to 911 were
passersby. (Trial 361-362).
Towsley never admitted to the police that he intentionally started the fire and repeatedly
told people it must have started in a toaster oven while he was asleep (Huntley 35-38, 114-115;
Trial 389-390, 424-425, 454-457, 546, 578, 628). Multiple witnesses testified to Towsley being
intoxicated both before and after the fire. (Huntley 31, 107; Trial 331-332, 382-383, 397, 542543, 578, 609, 1121).
The relative lack of direct evidence was both explicitly (A53) and tacitly (Trial 1174)
acknowledged by the prosecution. The prosecutions only direct evidence, if any was the
testimony of Percy, the convicted sex offender, with a history of convictions for dishonesty.
(Id.)
Instead, the prosecution relied on several expert witnesses to give their opinions as to the
likely origin of the fire. (Trial 694-695, 739, 767-773, 909-922).

24

Given the nature of the prosecutions case, defense counsel made requests both prior to
trial and during the trial to allow an expert to testify for the defense via closed-circuit television
or telephone, pursuant to the authority of Judiciary Law 2-b (3). (A103-116; 03/31/09 Motion
3-4; Trial1029-1030).
These requests were made because the only experts that the defense could retain were out
of state and ultimately unable to travel to Cayuga County for the trial due to health reasons.
(A101, 107, 126-132, 193-199; Trial 535, 945, 1029-1030, 1037-1038, 1153-1154, 1165-1166).
As part of the applications for remote testimony, the defense submitted preliminary
reports from both experts, setting forth multiple flaws with the prosecutions case. (A111-116,
126-132).
Without a witness of its own to rebut the prosecutions expert testimony, the defense said,
Towsley would be hopelessly prejudiced...through no fault of [his own], (Trial 1155) with
the probability of conviction almost certain. (A107).
Despite this, the court repeatedly denied the defenses requests to allow audio or video
testimony from its experts. (03/31/09 Motion 7; Trial 1033, 1166).
In denying the motions, the court did not find that the testimony would be prejudicial,
cumulative, irrelevant or otherwise inadmissible. Instead, it simply ruled, incorrectly, that it had
no authority to allow testimony in this manner. (Id.) Furthermore, the trial court based its
decision, in part on a misunderstanding of the confrontation clauses of the federal and state
constitutions, referencing the confrontation issue as a basis for denying the application for
video or telephone testimony. (Trial 1166).
Given the holdings in the Wrotten cases, the basis for the rulings was error. Wrotten, as
noted above, stands for the premise that a court does, in fact, have this authority. Further, if the

25

prosecution may successfully seek to have an adult witness testify via closed-circuit television
under the courts inherent powers, then, if anything, the defense has a greater right to do so,
given the defendants Sixth Amendment and Fourteenth Amendment rights.
The primary concern regarding closed-circuit testimony is traditionally whether it may
violate a defendants right, under U.S. Const. Amend. 6 and N.Y. Const., Art. I, 6, to confront
his or her accusers. In re Noel O., 19 Misc.3d 418 (2008). In fact, the central purpose of the
Confrontation Clause is to ensure the reliability of the evidence against a defendant.
Maryland v. Craig, 497 U.S. 836 (1990) (emphasis added). See, also, People v. Cintron, 75
N.Y.2d 249 (1990).
Therefore, where the defendant seeks to introduce the testimony, the Confrontation
Clause issue is no longer relevant. Furthermore, unlike a private litigant, a State may not
legitimately assert an interest in maintenance of a strategic advantage over the defense, if the
result of that advantage is to cast a pall on the accuracy of the verdict obtained. Ake, supra.
However, in this case, as noted above, the court relied the Confrontation Clause, which is
intended to safeguard the rights of a defendant, to prevent the defendant from putting forth a
necessary part of his defense.

In essence, the court transferred a defendants constitutional right

to the government.
The prosecution may argue that the courts error was harmless, due to the testimony of
Percy that Towsley admitted to setting the fire.

The prosecution may further argue the lower

courts decision was a matter of discretion which should be respected, because Judiciary Law
2-b (3) only authorizes, but does not require, electronic testimony.

26

Such an argument might be persuasive if the court had made findings to that effect.
However, the court did not. As noted above, the court based its decision on nothing but a
mistake of law, which included a reversal of the principles behind the Confrontation Clause.
Therefore, it is respectfully submitted that the trial courts refusal in this case was in
error, an abuse of discretion and/or a violation of the defendants right to a fair trial.
B. The trial courts refusal to grant a continuance
was an abuse of discretion and in error.

Generally, granting or denial of an adjournment by trial judge is a matter of discretion.

People v. Oskroba, 305 N.Y. 113 (1953).
However, it has been held to be an abuse of discretion where the refusal to grant a
continuance denies a defendant the fundamental right to present [a] witness... in [his] defense
and effectively deprive[s him] of the defense itself and cast[s] doubt upon [his] credibility
People v. Foy, 32 N.Y.2d 473 (1973).
In People v. Hartman, 64 A.D.3d 1002 (3rd Dept., 2009), the court held that the denial of
a defendant's motion for adjournment of the trial, which was based on unavailability of an expert
witness, constituted reversible error requiring new trial.

In Hartman, the court held that,

although defense counsel did not advise court when its expert was to be available to testify or
how long the requested adjournment was to be, counsel had exercised diligence and good faith in
attempting to expedite the experts services and the experts testimony was material to the
defense, warranting the adjournment. Id. Similarly, in Stevens v. Auburn Memorial Hosp., 286
A.D.2d 965 (4th Dept., 2001), it was held that refusal to refusal to grant an adjournment when an
expert witness became ill within a week of the trial was an abuse of discretion where the requests

27

for adjournment did not result from a failure to exercise due diligence, no other delays were
attributable to the party requesting the adjournment and the testimony of the expert was material.
In the case at hand, the defense counsel had made diligent efforts to obtain an arson
expert for trial.
The first expert it located, Hurst, could not testify because, as noted above, the court
prohibited closed-circuit testimony, despite Hursts health problems. (A107).
The second, Goodson, was scheduled to testify during the trial. Defense counsel had
previously provided the court with both Goodsons resume and trip itinerary and fully expected
him to appear. (A196-199; Trial 535).
However, during the prosecutions direct case, Goodson notified defense counsel that he
could not travel due to health problems. (Trial 531).
Once Goodson appeared unable to testify, the defense attorney and Goodson both
attempted to locate another expert to testify during that week, but to no avail. (A193; Trial 11531154, 1165-1166).
When locating a new expert proved impossible, and the court refused to reconsider its
prohibition on remote testimony, defense counsel requested a continuance. Without a witness of
its own to rebut their testimony, counsel said, Towsley would be hopelessly prejudiced,
through no fault of his own. (Trial 1155).
The prosecution opposed the continuance motion. (A142-148; Trial 1156-1164).

The

court denied the defenses application. (Trial 1169-1170).

The courts denial should be overturned. Given the nature of the case against Towsley
and the prosecutions reliance on testimony from several expert witnesses as to the origin of the
fire, expert testimony was material to the defense.

28

Such testimony would have described flaws

in the methodology of the prosecution experts and provided alternative theories for the cause and
origin of the fire. (A111-116, 129-132).
Accordingly, the courts refusal to grant a continuance was in error and the judgement
of the lower court should be overturned.
C. The trial courts refusal to grant a mistrial
was an abuse of discretion and in error.
Pursuant to CPL 280.10(1), at any time during the trial, the court must declare a
mistrial and order a new trial of the indictment upon the motion of the defendant, when there
occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the
courtroom, which is prejudicial to the defendant and deprives him of a fair trial.
It has been held that the unavailability of a crucial defense witness constitutes a manifest
necessity for a mistrial. Enright v. Siedlecki, 59 N.Y.2d 195 (1983); Stanley v. Justices of
Supreme Court, 214 A.D.2d 741 (2nd Dept., 1995). It has also been held that the ends of justice
would be defeated absent a mistrial where a party represented without contradiction that an
essential witness was suffering serious health difficulties. People v. Singh, 190 A.D.2d 640 (1st
Dept., 1993), lv. den. 81 N.Y.2d 1020.
As noted above, in criminal cases, where the prosecution has the presented the testimony
of expert witnesses, a defendant may have a constitutional right to present his or her own expert
evidence to rebut the State's evidence. Ake, supra; Vale, supra. Given that the right to an expert
witness is, in certain circumstances, so important as to rise to the level of a constitutional right, it
is respectfully submitted that an expert witness is, in fact, a necessary and material witness in this
case.
In the case at hand, as noted more fully above, the prosecutions case relied heavily on
expert testimony. (Trial 694-695, 739, 767-773, 909-922). The defense had obtained an expert
29

witness, Goodson. The court had approved public funds for Goodsons travel expenses. (A135136). The defense attorney fully expected Goodson to testify and, only during trial, discovered
that Goodson could not appear due to illness. (A196-199; Trial 535). The failure to appear was
not the fault of Towsley or his attorney. The defense attempted to locate another expert (A193;
Trial 1153-1154, 1165-1166) and made several suggestions for how to resolve Goodsons
unavailability without resort to a mistrial, including testimony via closed-circuit television or
telephone (Trial1029-1030) and a requesting a continuance (Trial 1153, 1164-1165).
Given the above, the trial courts refusal to grant a mistrial was an abuse of discretion and
should be reversed.
D. The court violated the defendants
right to effective assistance of counsel.
A defendant in a criminal case has a constitutional right to the effective assistance of
counsel under both the United States and New York State Constitutions.

U.S. Const. Amend.

6; NY Const. Art. 1, 6; Cuyler v. Sullivan, 446 U.S. 335 (1980); People v. Alford, 33 A.D.3d
1014 (2nd Dept., 2006).
Generally, counsel for a party is entitled to a fair opportunity, subject to the applicable
rules of evidence, to call and examine the witnesses for a party, and to bring out such material
facts as counsel desires. People v. De Maio, 243 N.Y. 588 (1926).

In addition, it has been held

that expert testimony is a basic tool of an adequate defense. Ake, supra. See, also, Giannelli,
Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89
Cornell L. Rev. 1305, 136570 (2004).
In this case, as noted above, the bulk of the prosecutions case in chief was built upon
circumstantial evidence and opinion evidence, including the testimony of the fire investigators
and expert witnesses.

By refusing to allow defense counsel to refute the prosecutions experts

30

by calling an expert of its own, the court placed defense counsel at a critical disadvantage against
the prosecution. Therefore, the lower courts decisions concerning the expert witness denied
Towsley the right to effective assistance of counsel.
E. The trial court erred in allowing
testimony regarding canine hits
for ignitables at the scene.

In order for the court to receive evidence, the party offering it must lay a foundation for
its admissibility. People v. Spirles, 275 A.D.2d 980 (4th Dept., 2000). This is true even where a
procedure is investigative, rather than scientific. People v. Roraback, 242 A.D.2d 400 (3rd
Dept., 1997).
In regards to the use of canine tracking, part of a proper foundation is establishing a
record of the dog's accuracy and reliability prior to admitting such evidence. People v. Abdullah,
134 A.D.2d 503 (2nd Dept., 1987); People v. Centolella, 61 Misc.2d 723 (1969).
In the case at hand, the prosecution did not lay a proper foundation prior to testimony
about the dog used to detect ignitables at the fire scene. Rather than affirm the dogs reliability,
two of the prosecution experts testified as to potential problems with canine reliability in fire
detection. (Trial 522-527, 781-782).

Furthermore, laboratory analysis did not validate the

dogs findings. (Trial 516-517).

Despite this, the court allowed the dogs handler to give his opinion as to his dogs
reliability and describe ignitables that the dog allegedly found at the fire scene. (Trial 891-908).
It allowed this testimony despite the fact that the defense had objected at both the pretrial and
trial stages to such testimony. (A31-32, 36; 11/18/08 Motion 3; Trial 250-251, 891-893).
Given the above, the courts decision was erroneous and should be reversed.
II. The integrity of the grand jury
31

was impaired and required

dismissal of the indictment.
Pursuant to CPL 210.20(1) (c), a defendant may move to dismiss an indictment where
the grand jury proceeding was defective, within the meaning of CPL 210.35. Under CPL
210.35(5), a grand jury proceeding is defective when [t]he proceeding ... fails to conform to the
requirements of [CPL Art. 190] to such degree that the integrity thereof is impaired and prejudice
to the defendant may result. Under this section, a defendant need not establish actual prejudice
if the integrity of the grand jury was impaired, merely an actual likelihood of prejudice to
warrant dismissal. People v. Adessa, 89 N.Y.2d 677 (1997); People v. Hill, 5 N.Y.3d 772 (2005).
Furthermore, this issue survives a conviction after trial. People v. Huston, 88 N.Y. 2d 400
(1996).
A. The forepersons prior relationship with
and dislike of the defendant
may have prejudiced the grand jury.
One issue that may affect the integrity of the grand jury is juror bias, or potential juror
bias. CPL 190.20(2) (b); People v. Connolly, 63 A.D.3d 1703 (4th Dept., 2009).
In this case, as part of its pretrial motions, the defense moved the court for dismissal of
the indictment upon the ground of grand juror bias. The basis for this motion was that the grand
jury foreperson knew Towsley personally and did not care for him. (A86, 99-100).
The court denied the motion to dismiss the indictment, finding that the foreperson had
disclosed his familiarity with the defendant to the district attorney and been excused from
deliberating or voting on the indictment. (A123-124; 02/03/09 Motion 4).
It is true that, where a grand juror disclosed his or her relationship with the defendant,
was excused at the outset of the presentation, and did not vote on the indictment, jury impairment
will normally not be found. People v. Nash, 236 A.D.2d 845 (1997).
32

However, in the case at hand, the foreperson did participate in the matter by signing the
indictment and declaring a true bill. (A14-16, 86, 99-100).
Furthermore, if the other grand jurors knew about the relationship of the foreperson to the
defendant, there is a risk that their emotions affected the deliberations and vote. People v. Peter,
22 Misc.3d 713 (2008). Given that the standard for impairment is whether prejudice to a
defendant may have occurred, this is an issue that this court, with its access to the grand jury
minutes, should review carefully and, as appropriate, consider as a basis for reversal.
B. The indictment was improperly signed.
CPL 200.50(8) requires that an indictment be signed by the foreperson or acting
foreperson of the grand jury. People v. Foster, 60 Misc. 3 (1908).
The duty of the acting foreperson is act as foreperson during any absence or disability
of the foreperson. CPL 190.20(3).

Where a foreperson is unable to sign an indictment, the

acting foreperson has the power to do so. People v. Cohen, 22 Misc.2d 722 (1960).
In this case, as noted above, the foreperson had been excused from hearing or voting on
the indictment against Towsley. Therefore, the foreperson was under an absence or disability
concerning this indictment. Accordingly, as the defense argued before the lower court, the
acting foreperson, not the foreperson, should have signed the indictment. (A86, 99-100).
It is respectfully submitted that the absence of the proper signatory renders the indictment
unsigned. Therefore, it should have been dismissed by the lower court.
III. The defendants statements to law enforcement
were involuntary and mandated suppression.

Evidence of a written or oral confession, admission, or other statement made by a

defendant with respect to his participation or lack of participation in the offense charged may not

33

be received in evidence against him in a criminal proceeding if the statement was involuntarily
made. CPL 60.45(1).

Towsleys statements in the instant matter were involuntary for the

following reasons.
A. The police failed to properly advise the defendant of
his constitutional rights before questioning.
A confession, admission or other statement is involuntarily made when it is obtained
from the defendant in violation of his or her federal or state constitutional rights. CPL 60.45(2)
(b).
One such violation is the failure to give Miranda warnings to a defendant prior to
questioning once he or she is in custody. Miranda v. Arizona, 384 U.S. 436 (1966); People v.
Ramos, 27 A.D.3d 1073 (4th Dept., 2006), lv. dis. 6 N.Y.3d 897 (2006); People v. Marrow, 301
A.D.2d 673 (3rd Dept., 2003); People v. Sanders, 169 Misc. 2d 813 (1996).
The issue of whether a suspect is in custody is generally a question of fact. People v.
Centano, 76 N.Y.2d 837 (1990); People v. Albro, 52 N.Y.2d 619 (1981); People v. Nova, 198
A.D.2d 193 (1st Dept., 1993); People v. Johnson, 160 A.D.2d 813 (2nd Dept., 1990). In
deciding whether a defendant was in custody prior to receiving his Miranda warnings, the test is
what a reasonable person, innocent of any crime, would have thought had he or she been in the
defendant's position. People v. Andrews, 13 A.D.3d 1143 (4th Dept., 2004).
Under Miranda, interrogation refers not only to express questioning but also to any words
or actions on the part of the police that they should know are reasonably likely to elicit an
incriminating response, or a response relating in some way to the matter for which the suspect
has been arrested. People v. Payne, 41 A.D.3d 512 (2nd Dept., 2007), lv. den. 10 N.Y.3d
814(2008); People v. Hardy, 223 A.D.2d 839 (3rd Dept., 1996); People v. Butts, 175 Misc. 2d
709 (1998).
34

In the case at hand, Towsley made several statements to law enforcement officials after
being detained and locked in the back of Deputy Ryans patrol car. (Huntley 8-10, 13-16, 89-93;
Trial 578, 608).

In one case, the questioning did not occur until almost two hours after

emergency personnel first arrived on the scene. (Trial 361-362).

Furthermore, police had

asked Towsley to submit to an alcosensor test (Huntley 89, 95; Trial 331, 548-549) and, at one
point, found marijuana plants growing at the scene. (Huntley 91; Trial 332-333).
Based upon the foregoing, a reasonable person, innocent of any crime, would have
thought he or she was under arrest. Accordingly, Towsley was in custody and his constitutional
rights should have been read to him.
However, no one read Towsley his Miranda rights prior to, or during, any of his
questioning. (Huntley 34, 100).
This rendered the statements made by Towsley while locked in the patrol car involuntary
and inadmissible.
Despite the above, the trial court found that Towsley was not in custody at the time his
gave his statements to the police and denied the defense motion to suppress. (Huntley 127).
Therefore, the trial court erred in finding that the statements were voluntary.
B. The defendants high degree of intoxication
rendered his statements involuntary.

Where a defendant was intoxicated to the degree of mania, suppression of his or her
statements is warranted. People v. Schompert, 19 N.Y.2d 300 (1967); People v. Klumbach, 202
A.D.2d (4th Dept., 1994). Similarly, a defendant's statements are properly suppressed where the
defendant was too intoxicated to understand the nature of his or her waiver and its consequences.
People v. Iddings, 23 A.D.3d 1132 (4th Dept., 2005), lv. den. 6 N.Y.3d 776.

35

In the case at hand, Towsleys intoxication at the time he spoke to police is not in dispute.
The prosecution conceded that there was no doubt that the defendant was intoxicated during
questioning, but alleged that Towsley was not so intoxicated as to render his statements
inadmissible.

(Huntley 122-125). The court agreed with this analysis and allowed Towsleys

statements to be used at trial. (Huntley 127).

The courts ruling was in error.
The record during the suppression hearing demonstrated that Towsley had been drinking
from a large bottle of rum all day prior to the fire. (Huntley 48, 54, 57-58). Shortly before the
fire he was so intoxicated that he was walking around outside, naked, while ranting and raving.
(Huntley 106-107).

After the fire, and during questioning, he was burned (Huntley 88-89) and

glassy eyed (Huntley 32).

He attempted to run back into the fire (Huntley 89-90) and, later,

charged off into some nearby woods (Huntley 54-55). He ended up in a friends barn, still
intoxicated and still drinking. (Huntley 111-112). At one point, during questioning he was
agitated and talked about whether his memory was just a dream. (Huntley 35-38).
Based upon the foregoing, the evidence demonstrated that Towsley was intoxicated to the
point of mania and/or unable to understand his rights. Furthermore, as noted above, he had not
been read those rights
Accordingly, the defendants statements were involuntary and subject to suppression.
Therefore, the lower courts decision denying suppression should be overturned.
IV. The trial evidence was not legally sufficient
to establish the offense of Criminal Mischief
Third Degree.
Pursuant to CPL 290.10(1) (a), at the conclusion of the people's case or at the
conclusion of all the evidence, the court may... upon motion of the defendant, issue a trial order
36

of dismissal, dismissing any count of an indictment upon the ground that the trial evidence is
not legally sufficient to establish the offense charged therein....
Such a motion is based on the insufficiency of the proof adduced during trial to establish
the crime charged. People v. Ledwon, 153 N.Y. 10 (1897); People v. Howard, 91 A.D.2d 1127
(3rd Dept., 1983).

For the motion to be granted, the defense must demonstrate that the

prosecution has failed to prove particular elements of an offense. People v. Gillespie, 35 A.D.3d
880 (2nd Dept., 2006), lv. den., 8 N.Y.3d 984; People v. Hines, 97 N.Y.2d 56 (2001); People v.
Gray, 86 N.Y.2d 10 (1995).
Under Penal Law 145.05(2), in order to sustain a charge of Criminal Mischief Third
Degree, the prosecution must prove that a defendant intentionally damaged property of another
person in an amount exceeding $250.00.
Pursuant to this section, it has been held that testimony that the approximate cost of
repair was approximately three hundred to three hundred twenty five dollars was insufficient
to show that damages exceeded $250.00, for the purpose of a Criminal Mischief Third Degree
conviction.

People v. Gaines, 136 A.D.2d 731(2nd Dept., 1988) app. den. 71 N.Y.2d 896.

Furthermore, hearsay testimony is not sufficient to establish that the cost of damage to property
exceeded $250.00. People v. Quigley, 70 A.D.3d 1411 (4th Dept., 2010).
In the case at hand, under this charge, the allegation against Towsley was that he
damaged property in August of 2007. (A15). The property in question, the prosecution alleged,
was a kitchen window. (Trial 1069).
Following the close of the prosecutions proof, the defense counsel made a motion for a
trial order of dismissal. (Trial 1067-1075).

It renewed the motion following the close of the

defense case, and prior to the jury charge. (Trial 1172-1173).

37

The defense argued in particular that the charge Criminal Mischief Third Degree (Count
Nine) had not been established because the prosecution had not proven beyond a reasonable
doubt that Towsley had caused more than $250.00 in damage to the kitchen window during the
incident in question.

(Trial 1067-1068).

In fact, neither of the witnesses called by the prosecution to establish the value of
damages under this count was able to do so.
The person who repaired the window did not know what it cost to replace the window.
He guessed it was $250.00 or $270.00. In addition, he suggested that he would need to locate an
invoice from the window supplier to be certain.

(Trial 366-368). Such an invoice, unless

properly authenticated, would have been hearsay. CPLR 4518.

Similarly, when asked how much she paid to repair the window Rieks said that she
believe[d] it was $300.00. (Trial 965). However, she admitted she did not know. (Trial
1053).
Accordingly, based upon the foregoing, even reviewing the evidence in a light most
favorable to the prosecution, the elements of the offense of Criminal Mischief Third were not
proven and, therefore, this count should have been dismissed.
V. The trial court erred in refusing to give
the jury a circumstantial evidence charge.

Whenever a case relies wholly on circumstantial evidence to establish the elements of the
charge against the defendant, the jury must be instructed that the evidence must establish guilt to
a moral certainty. People v. Daddona, 81 N.Y.2d 990 (1993).

This instruction must be given,

upon the request of the defendant, when any count of an indictment relies entirely on

38

circumstantial evidence. People v. Griffin, 9 A.D.3d 841 (4th Dept., 2004); People v. David, 234
A.D.2d 787 (3rd Dept., 1996).
Furthermore, in such a case, even where a defendant has allegedly made certain
admissions, the trial court must give a requested circumstantial evidence instruction where the
alleged admissions are circumstantial in nature. People v. Liverpool, 262 A.D.2d 425 (2nd
Dept., 1999).
It has been held that inconsistent exculpatory statements are not direct evidence of guilt.
People v. Griffin, 121 A.D.2d 927 (1st Dept., 1986). Similarly, where a defendants statements
establish acts at than other than those upon which the prosecutions theory is based, the
statements are circumstantial and the court is required to instruct the jury regarding
circumstantial evidence. People v. Sanchez, 61 N.Y.2d 1022 (1984).
In the case at hand, the prosecution conceded that, but for the testimony of Percy, their
case was entirely circumstantial. (A118-121, 141-142; Trial 1174-1175).
Towsleys statements to others were, at most, inconsistent exculpatory statements, in
which he typically blamed a toaster oven, or unknown causes, for the fire. (Trial 329, 389-390,
424-425, 546 628)
Furthermore, in the case of Percy, the admission Towsley allegedly made to him
described acts that contradicted the prosecutions theory of the case.
The prosecutions experts put forth that there were two separate fire origins, the master
bedroom and the living room. They further alleged that ignitables had been used in both rooms.
(Trial 717, 755, 763, 893-908). Their theory was adopted by the prosecution during its closing to
support the inference that Towsley intentionally damaged the building by starting a fire. (Trial
1225, 1238, 1247).

39

Percy, however, claimed that Towsley only admitted setting fire to a desk in the living
room. No ignitables or accelerants were mentioned, only cigarettes and a lighter. Towsley,
Percy said, also claimed he tried to put the fire out after it started but was unable to do. (Trial
407-408).
As such, Towsleys alleged statement to Percy did not match the theory and facts that the
prosecution and its experts put forth. Therefore, this statement was circumstantial, not direct.
Accordingly, the court was required, upon the defendants request, to give a
circumstantial evidence charge. The failure to do so was error, requiring reversal.
VI. The guilty verdicts concerning the fire
were inconsistent with the acquittals and
should be set aside on repugnancy grounds.
Pursuant to CPL 330.30, upon the appropriate grounds, at any time after rendition of a
verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or
modify the verdict or any part thereof....
Under the statute, a court may set aside a verdict if it was repugnant. People v. Alfano,
131 Misc. 2d 843 (1986). A verdict is repugnant when it is inherently inconsistent when viewed
in light of the elements of each crime as charged to the jury. People v. Sackes, 11 A.D.3d 364
(1st Dept. 2004), lv. den. 4 N.Y.3d 748.
In reviewing a claim of repugnancy, the court must focus on the elements of each count
as charged to the jury, and whether the jury, as instructed, must have reached an inherently selfcontradictory verdict. If the court determines that a defendant has been convicted of an offense
containing an essential element, which the jury has found the defendant did not, in fact, commit,
reversal on repugnancy grounds is justified. People v. Jordan, 9 A.D.3d 792 (3rd Dept. 2004),
lv. den. 3 N.Y.3d 708.
40

The applicable elements of Reckless Endangerment First Degree are that a defendant,
under circumstances evincing a depraved indifference to human life, recklessly engaged in
conduct that creates a grave risk of death to another person. Penal Law 120.25. Under the
indictment for this charge (Count Three), the prosecution alleged that Towsley created a grave
risk of death to other persons in part by intentionally starting a fire in a dwelling. (A14).
The applicable elements of Aggravated Animal Cruelty are when a defendant, with no
justifiable purpose, intentionally kills or intentionally causes serious physical injury to a
companion animal with aggravated cruelty. Agriculture and Markets Law 353-a (1). Under
indictment for this charge (Count Four), the prosecution alleged that Towsley killed a pet cat by
intentionally causing or permitting the cat to die in a fire which the defendant had intentionally
set. (A15).
The applicable elements of Arson Third Degree are that a defendant intentionally
damaged a building by starting a fire without permission or right to do so. Penal Law 150.10.
Under the indictment for this charge (Count One), the prosecution claimed that Towsley
intentionally damaged the subject premises by starting a fire. (A14).
The applicable elements of Criminal Mischief Second Degree require that a defendant
intentionally damage property of another person in an amount exceeding one thousand five
hundred dollars, without permission or right to do so. Penal Law 145.10. According to the
indictment for this charge (Count Two), Towsley committed this act by intentionally damaging
the subject premises by starting the fire. (A14).
Based upon the elements of each charge, and the acts alleged in the indictment, it is
respectfully submitted that the jury must have found the prosecution did not establish the element
of mens rea on the acquitted counts.

41

In the case at hand, the jury acquitted Towsley of the following charges: Reckless
Endangerment First Degree and Aggravated Animal Cruelty. The jury convicted Towsley of the
remaining counts, including Arson Third Degree and Criminal Mischief Second Degree. (Trial
1321-1324; A5-6, 200-201).
It is without dispute that there was a fire and that the fire damaged a building and
property and caused the death of a companion animal. It is also without dispute that the owners
of the property gave no permission to damage it.
Therefore, the only element in dispute would appear to be defendants state of mind
and/or intent.
As noted above, the jury found Towsley not guilty of the animal cruelty charge.
As the indictment was written, it appears that the only way to find Towsley not guilty of
animal cruelty was to find insufficient proof that he killed the animal by intentionally starting a
fire. (A14).
Therefore, the jury should have found that Towsley did not intentionally cause the fire or
damage the property.
Similarly, as noted above, the jury found Towsley not guilty of reckless endangerment.
That charge was based, again, in part on his intentionally starting the fire. (Id.) Again, therefore,
this appears to indicate that the jury found no intent on this count.
Furthermore, if the jury found that Towsley did not act recklessly under Penal Law
120.25 then it is respectfully submitted that they could not have found he acted intentionally.
Intentionally is a higher mental culpability than recklessly. People v. Ford, 66
N.Y.2d 428 (1985); People v. Tai, 39 N.Y.2d 894 (1976). A person acts intentionally when his
or her conscious objective is to cause such result or to engage in such conduct. Penal Law

42

15.05 (1).

However, for a reckless crime, the defendant does not act with the conscious

objective of causing the unlawful result. People v. Atkinson, 21 A.D.3d 145 (2nd Dept., 2005),
affd 7 N.Y.3d 765. A person acts recklessly merely when he or she is aware of and
consciously disregards a substantial and unjustifiable risk that such result will occur or that such
circumstance exists. Penal Law 15.05 (3).
Because the jury found Towsley innocent of the lesser degree of mental culpability in
connection with the indictment, it is respectfully submitted that they were required to find him
innocent of the higher degree of culpability on the other related charges. Therefore, the guilty
verdicts of Arson Third Degree and Criminal Mischief Second Degree were repugnant and
should have been set aside.
It is true that any claim that a verdict is repugnant must normally be made before the jury
is discharged in order to permit the court to resubmit the matter to the jury to obtain a consistent
verdict. People v. Carter, 21 A.D.3d 1295 (4th Dept., 2005), aff'd, 7 N.Y.3d 875.
However, in this case, the courts actions prevented the defendant from doing so. The
court discharged the jury before allowing the defendant to make an application regarding the
verdict.
Generally, it appears that the terms discharged and excused, when referring to jury
service, are synonymous. See, e.g., People v. Rosario, 224 A.D.2d 723 (2nd Dept., 1996).
In this case, the trial court told the jury it was excused (and, therefore, discharged)
immediately after polling them. Only after that did the court ask defense counsel if it had any
other applications. Defense counsel then responded it wanted to file a motion to set aside the
verdict on repugnancy grounds, stating there were differences in some of the verdicts with
regard to the first two [counts] being guilties and then not guilty. (Trial 1324-1325). Later, at

43

sentencing, the defense moved to set aside the convictions for Arson Third Degree and
Criminal Mischief Second Degree. (Sentencing 2-4).
An error or defect occurring at a trial which deprived the defendant of a fair trial may be
reversed or modified as a matter of discretion in the interest of justice include. CPL 470.15(6)
(a). Therefore, if the court finds that this issue is unpreserved, we ask that the court exercise its
discretion in this area and reverse the decision of the lower court.
VII. The defendants sentence
was harsh and excessive.

Pursuant to CPL 450.30 (1), an appeal by the defendant from a sentence may be based
upon the ground that such sentence either was (a) invalid as a matter of law, or (b) harsh or
excessive. Furthermore, an intermediate appellate court has the power to modify a sentence as
a matter of discretion, in the interests of justice. CPL 470.15(6) (b). This power may be
exercised without deference to the sentencing court. People v. Delgado, 80 N.Y.2d 780 (1992).
The prohibition against a harsh or excessive sentence stems from the Eighth
Amendment's protection against excessive or cruel and unusual punishments. U.S. Const.Amend.
8. As part of this prohibition, it has been held that to punish a person because has exercised a
constitutional right is a violation of due process. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
In the instant case, prior to trial, Towsley had been offered a sentence on the arson charge
of three to nine years incarceration.

(Sentencing 17-19). Furthermore, the record was replete

with references to Towsleys alcoholism and the fact he had been intoxicated at the time of the
fire.
Following trial, the court sentenced Towsley to imprisonment as follows, all to be served
concurrently:
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Arson Third Degree: an indeterminate sentence of four to twelve years;

Criminal Mischief Second Degree: an indeterminate sentence of two and onethird to seven years;
Unlicensed Growing of Cannabis: one year;
Criminal Mischief Fourth Degree: one year
Criminal Mischief Third Degree: one and one-third to four years.
The court also stated it was going to recommend against shock camp. (Sentencing 2224).
It is respectfully submitted that, given the facts of this case, the courts sentence, while
not the maximum, was unduly harsh and excessive.
Accordingly, the defendant requests that the court modify the sentence.
CONCLUSION
Therefore, for all the reasons set forth above, it is respectfully submitted that the
judgement of conviction and sentence should be reversed and/or modified as set forth herein,
together with such other and further relief as to this court may be just and proper.
Dated: December 10, 2010
Respectfully submitted,

STEVEN J. GETMAN, ESQ.

Attorney for Defendant-Appellant
7185 Main Street, PO Box 449
Ovid, NY 14521
607.869.9646

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