AD3 order dated April 26, 2012, affirming judgment of conviction. Decision below: 94 A.D.3d 1332, 942 N.Y.S.2d 708. Pigott, J., granted leave October 12, 2012.

ISSUES PRESENTED: (1) The sufficiency of the evidence of insurance fraud in light of the defendant’s acquittal of the underlying arson. (2) Prosecutorial misconduct on summation. (Assigned counsel: Jonathan S. Fishbein, 35 Fairview Ave., Delmar, NY 12054.)

Issue before the Court:  Whether the jury's acquittal of the defendant on the arson count rendered the evidence of insurance fraud in the second degree legally insufficient where the prosecution's theory was that the defendant burned down a property he owned and then filed a property loss notice concealing information about the cause of the fire.  

Held:  Even assuming the verdict presented a factual inconsistency, that did not itself require reversal and did not affect the propriety of the verdict, as there was sufficeint evidence that the defendant committed insurance fraud based on proof that he bought the property at no cost, purchased four gallons of petroleum ten days later, and that the accelerant was found inside and outside the torched building. 

CAL Observes:  In rejecting the defendant's "backdoor repugnancy" argument - that the acquittal, while not rendering the conviction legally repugnant, rendered the evidence legally insufficient - the Court sends a somewhat mixed message.  On the one hand, it endorses that factual inconsistency in a verdict "may inform" sufficiency analysis, but then considers the sufficiency argument here "analytically distinct," and reviews the evidence without factoring in the acquittal.  Judge Pigott, the leave granter, was the sole dissenter, finding that the court, by allowing the jury to continue deliberating after acquitting the defendant of arson, promoted a confusing verdict and denied the defendant a fair trial.