People v. Zurzolo

Appeal by the People from an order of the Supreme Court, Kings County (Owens, J.), entered February 11, 1986, which granted the defendant’s motion to set aside a jury verdict finding him guilty of arson in the third degree, insurance fraud in the first degree, and grand larceny in the second degree. Ordered that the order is affirmed. The charges herein stem from the discovery at about midnight on May 15, 1983, of a fire at a restaurant operated by the defendant on Coney Island Avenue, Brooklyn. Expert testimony established that the fire was intentionally started with the use of an accelerant. An employee of the restaurant testified that he left the defendant at the restaurant at 11:00 p.m. and during the investigation of the fire, the defendant told a fire marshal that he closed up the restaurant at 11:15 p.m. There was also additional evidence that at least two other persons had access to a key to the restaurant. However, it was the prosecution’s contention that defendant was the only person who had an apparent motive to commit the arson. In support of this contention, the prosecution adduced evidence that three years prior to the fire the defendant’s business was floundering and that a year prior to the fire he had expressed a desire to be released from the lease under which the premises was rented. However, there was no indication when the lease expired or that the defendant sought to be relieved of his obligations thereunder. The pivotal issue on this appeal is whether this circumstantial evidence established that the defendant intentionally set fire to the restaurant. We find that it does not and that the trial court properly set aside the jury’s verdict of guilty. In assessing the legal sufficiency of circumstantial evidence, we must view the evidence in a light most favorable to the prosecution, giving it the benefit of every reasonable inference to be drawn therefrom, and we must then determine whether the facts from which the inference of the defendant’s guilt is drawn are inconsistent with his innocence and exclude to a moral certainty every other reasonable hypothesis (see, People v Betancourt, 68 NY2d 707; People v Marin, 65 NY2d 741; [287] People v Mann, 125 AD2d 711, lv denied 69 NY2d 748, on reconsideration lv denied 69 NY2d 952). In this case, the People did not establish when the fire had started and- there was a one-hour hiatus between the time when the People established the defendant’s presence at the restaurant and the time when the fire department responded to the alarm. Given these facts, as well as the fact that the defendant was not the only person with access to keys to the restaurant, it cannot be concluded that the defendant had the exclusive opportunity to start the fire (cf., People v Mann, 125 AD2d 711, supra; People v Feuerstein, 74 AD2d 853). Furthermore, there was no evidence which connected the defendant with the accelerant used to start the fire (see, People v Hamilton, 129 AD2d 859; People v Marin, 102 AD2d 14, affd 65 NY2d 741, supra). Under these circumstances we find that the facts adduced to establish the elements of the crime were not inconsistent with the defendant’s innocence. This conclusion is not negated by the fact that the prosecution adduced additional evidence to show that the defendant had a possible motive to start the fire. Although "evidence of a possible motive cannot be ignored in examining the evidence in the light most favorable to the prosecution, it does not establish any element of the crime, and cannot take the place of proof of the accused’s actual commission of the crime” (People v Marin, supra, at 745). Thompson, J. P., Brown and Sullivan, JJ., concur.