People v. Phillips ( 2015 )

People v Phillips (2015 NY Slip Op 00595)

People v Phillips

2015 NY Slip Op 00595

Decided on January 22, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 22, 2015
Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels, Gische, JJ.

13994 2513/09

[*1] The People of the State of New York, Respondent,

v

Daniel Phillips, Defendant-Appellant.

Stanley Neustadter, Cardozo Appeals Clinic, New York (Joshua S. Moskovitz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January 31, 2012, convicting defendant, after a jury trial, of arson in the second degree, criminal mischief in the second degree and reckless endangerment in the second degree, and sentencing him to an aggregate term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence for the arson conviction to a term of 7 years, resulting in a new aggregate term of 7 years, and otherwise affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). The circumstantial evidence, including a videotape of defendant's actions at the time of the fire and evidence of his motive, supported the conclusion that he set the fire.

Defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 U.S. 668 [1984]). The record establishes that counsel advised defendant against testifying, but also advised him that the ultimate decision to testify was a decision to be made by defendant personally (see People v Perry, 266 AD2d 151, 152 [1st Dept 1999], lv denied 95 NY2d 856 [2000]).

We find the sentence excessive to the extent indicated.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 22, 2015

CLERK