A jury found defendants, an owner of an apartment building and its manager, guilty of Criminally Negligent Homicide and Reckless Endangerment in the Second Degree, arising out of the deaths of two New York City firefighters. Because of the revered place trial by jury holds in our American justice system, where a jury has deliberated on criminal charges and rendered a guilty verdict, it should be a rare instance that a court sets aside that verdict. If issues of fact or law are raised in the trial, the verdict should stand and await review by the appellate courts. This court finds that this is that rare case where it cannot permit the jury verdict to stand. Significant issues were raised during the trial upon which the court would not set aside the verdict. But on the fundamental and essential requirement that defendants knew of the dangerous conditions that led to the deaths of the firefighters, the evidence was completely lacking. Because of this lack of [*2]evidence, the court is compelled to set aside the verdicts.

On the morning of January 23, 2005, New York City firefighters responded to a fire at 236 East 178th Street in Bronx County. Six firefighters became trapped by the fire and were forced to jump from the fourth floor of the building. Tragically, two of the firefighters jumped to their deaths; four firefighters survived but with debilitating injuries.

An investigation by the New York City Fire Department determined that the fire originated in apartment 3-I and was caused by unsafe electrical conditions created by the tenant, Rafael Castillo. The investigation also revealed that both Castillo and Caridad Coste, the lessee of apartment 4-L, had illegally built partitions inside their apartments that limited access to their fire escapes.

The investigation resulted in the indictment of Rafael Castillo and Caridad Coste on charges of Manslaughter in the Second Degree, Criminally Negligent Homicide, and Reckless Endangerment in the Second Degree. Defendants 234 East 178th Street, LLC (the "LLC"), the building's owner, and Cesar Rios, the prior owner who was de facto manager of the building, were also indicted on the same charges. Defendants Rios and the LLC were charged on the theory that they had recklessly tolerated the hazardous conditions that were created by the tenants and that caused the deaths of the firefighters.

The trial of defendants Rios and the LLC began on January 5, 2009 and continued through February 18, 2009.^[FN1] On their motions to dismiss after the People's case, defendants raised a number of significant issues and argued that the evidence presented was legally insufficient to submit any of the charges to the jury. The court reserved on the motions and submitted all of the charges to the jury.^[FN2] On February 18, 2009, the jury convicted defendants Rios and the LLC of two counts of Criminally Negligent Homicide and one count of Reckless Endangerment in the Second Degree, but acquitted them of the Manslaughter charges.

After the verdicts, the court set a motion schedule for the filing of a CPL §330.30 motion to set aside the verdicts on the grounds that the evidence was not legally sufficient. The case was then adjourned for decision. During the adjournment period, the People disclosed to the court and the parties information regarding a juror's communications with a firefighter witness on a social networking web site. With the parties' consent, the court held in abeyance the legal sufficiency motion and entertained oral arguments and written motions on the juror misconduct issue. At defendants' request, and with the People's consent, the court conducted a hearing at which both the juror and the firefighter testified. After the hearing, all parties agreed to submit written motions and briefs on both the juror misconduct issue and the legal sufficiency issue in [*3]one 330.30 motion.

After an extensive review of the trial and hearing transcripts, counsels' written submissions and oral arguments, as well as the relevant case law, the court decides the motions as follows:

As to the motions to set aside the verdicts based on juror misconduct, the motions are denied.

As to the motions to set aside the verdicts based on legal insufficiency, the court grants the motions and sets aside the verdicts as to each defendant on each charge. The court has reviewed the evidence in the light most favorable to the People and finds that, despite an abundance of evidence presented during the seven-week trial, there was no evidence that proved, either directly or inferentially, that defendants knew of the conditions that caused the firefighters' deaths.

After the jury verdict, the People informed the court and defense counsel, by letter dated March 9, 2009, that a juror attempted to contact one of the firefighter witnesses through Facebook, a social networking web site. On April 13, 2009, defendants filed a motion pursuant to CPL §330.30(2) seeking a hearing on the alleged misconduct. With the People's consent the court granted a hearing. (See CPL §330.40[2][f]).

Hearing Facts

On July 24, 2009, juror Karen Krell appeared in court in response to a defense subpoena. The court appointed counsel for Ms. Krell based on the concern that she may have committed criminal contempt by violating the court's instructions. The court scheduled a hearing for July 30, 2009. At the start of the hearing, Ms. Krell's attorney informed the court that if Ms. Krell were compelled to testify, she would exercise her Fifth Amendment right against self-incrimination. At the People's request, pursuant to CPL §50.30, the court granted Ms. Krell use immunity for her testimony. The People also called Firefighter Cawley to testify at the hearing.

Ms. Krell testified that after deliberations began, in the late evening of February 13, 2009, she went on to her computer and on to Facebook, as was her normal practice. Ms. Krell testified that she impulsively put in the name of Brendan Cawley, one of the firefighter witnesses, and one or two other names from the trial that she could not recall. She came across Brendan Cawley's Facebook page which contained a small photo. She was not certain if it was the witness. There was no information about the case on the page. She sent a "friend request" with no message to Brendan Cawley. She received no response to this request.

Ms. Krell testified that she took the case very seriously and would not have communicated with anyone about the case until it was over. She explained that it was an impulse to look for the witness and that as soon as she sent the friend request she knew she had made a mistake. She understood that it was wrong to try to contact anyone involved in the case. Ms. Krell also testified that she made no attempt during the trial to find any information about the fire, the case, or the witnesses on any website. She recalled possibly telling one or more jurors about her mistake, but there was no extensive discussion. She also insisted that this was not on her mind during deliberations.

The jury rendered its guilty verdict on February 19, 2009. The day after the verdict, and after the court had informed the discharged jurors that they were free to talk about the case, Ms. Krell sent a message to the same Brendan Cawley on Facebook. This time she identified herself [*4]as a juror. Brendan Cawley was, in fact, Firefighter Cawley and he accepted Ms. Krell's friend request and responded to her message.

Firefighter Cawley testified that when he received a friend request from Karen Krell, he did not know who she was, and did not recognize her from the picture and information that was available. He ignored her request until he received a second request after the jury verdict, in which she identified herself as a juror. He responded to her friend request and they exchanged emails. Firefighter Cawley subsequently notified the District Attorney's Office concerning these communications.

Legal Analysis

At any time after a guilty verdict but before sentencing, the court may set aside the verdict as a result of improper conduct by a juror that occurred out of the presence of the court and was not known to defendant prior to the rendition of the verdict, "which may have affected a substantial right of the defendant . . . ." (CPL §330.30[2]). As a general rule, a verdict will not be set aside due to juror misconduct unless a defendant can prove that such misconduct prejudiced a substantial right such that a fair and impartial assessment of the facts was frustrated. (People v Irizarry, 83 NY2d 557, 561 [1994]; People v Horney, 112 AD2d 841, 842 [1st Dept 1985]). Upon a hearing on such a motion, defendant bears the burden of proving every fact essential to support the motion by a preponderance of the evidence. (CPL §330.40[2][g]). The court credits the testimony of Ms. Krell and Firefighter Cawley and holds that defendants failed to meet their burden of proof.

Ms. Krell's conduct was unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions. The fundamental right of a fair trial cannot be guaranteed if jurors fail to take their obligations seriously and disregard their oaths to follow the court's rules. Before a court can set aside a verdict based on a juror's violation of a rule, however, the misconduct must have prejudiced a substantial right of the defendants.

The uncontradicted evidence established that Ms. Krell sent a friend request to Firefighter Cawley that went unanswered. There was no communication with him prior to the verdict. Although defendants argue that Ms. Krell's "feelings" toward Firefighter Cawley "necessarily tainted" the outcome of the case, there is absolutely no evidence in the hearing record to support this assertion. Three days into deliberations any juror would be expected to have a feeling or opinion about the evidence at trial. Defendants failed to elicit any testimony to establish what exactly Ms. Krell's "feelings" were or how any "feelings" implicit in her friend request affected the jury's deliberations in any way. Accordingly, defendants failed to meet their burden of establishing that the juror's misconduct prejudiced a substantial right of the defendants. Therefore, defendants' motions to set aside the verdict based on juror misconduct are denied.

On the morning of January 23, 2005, a fire started in an apartment building at 236 East 178th Street in Bronx County, that was owned by defendant LLC. New York City firefighters were rapidly dispatched to the building. The fire began on the third floor in apartment 3-I and [*5]quickly spread upwards to apartment 4-L. When the firefighters first arrived at the building, one company went to apartment 3-I to put out the fire. A second company went to apartment 4-L, the apartment immediately above the fire, to search for residents, vent the upper floor and to look for extensions of the fire.

The firefighters were hampered in their initial efforts to extinguish the fire. Nearby hydrants were frozen due to blizzard conditions with high winds and sub-freezing temperatures. The main hose used to extinguish the fire malfunctioned and stopped working. Communication through the firefighters' radios was intermittently impaired. As things worsened, fire trucks equipped with extension ladders could not get near the rear of the building because the alleys were too narrow.

The firefighters inside of apartment 4-L were also severely hindered in their efforts to locate the fire extension and in their subsequent efforts to escape. They were unaware that Caridad Coste, the lessee of apartment 4-L, had built an illegal partition next to the fire escape. This partition made direct access to the fire escape from any room in the apartment impossible, with the exception of a rear bedroom ^[FN3] that had its own window onto the fire escape. With the illegal partition in place, the only way to the fire escape from the other rooms was via a circuitous route to a narrow, largely hidden hallway at the rear of the apartment, accessible only through the kitchen. This was a route that the six firefighters were never able to discover, with deadly consequences.

In addition to hiding and blocking the firefighters' clear access to the fire escape, this illegal partition affected the firefighters in other ways. When the firefighters first got to 4-L, they searched for fire extension on the fourth floor. They were initially unable to detect that the fire was burning close to them in the rear bedroom of the apartment because the illegal partition stood between them and the fire. That morning, the firefighters had with them a thermal imaging camera that they used to search for the fire. The camera revealed the presence of heat in the rear of the apartment but, because of the partition, the camera was blocked from reading the full intensity of the fire. Had the firefighters obtained an earlier and accurate reading of the intensity of the fire in the rear bedroom, they could have evacuated the apartment through the front door. Instead, the firefighters remained in the front bedrooms. Firefighter Joseph DiBernardo was in the first bedroom, Firefighters Jeffrey Cool, Eugene Stolowski, Brendan Cawley, and Lieutenant Curtis Meyran were in the second bedroom at the front of the apartment, and Firefighter John Bellew was in the partitioned room. All were unaware of the fire that was escalating behind them.

The illegal partition also affected the fire by containing it in the rear of the apartment until it grew with such intensity that it created a fireball that literally blew down the main hallway through the length of the apartment. Because of the partition and the location of the fire, this main hallway was the only means of egress. This sudden inferno struck with such ferocity that it blew the front door closed, eliminating any safe means of escape. The six firefighters became trapped in the three front bedrooms. As the fire spread into the front rooms, the intense heat and lack of air forced the men to the windows. To avoid being consumed by the fire that [*6]raged at their backs, the firefighters were forced to jump to the concrete pavement five stories below.^[FN4] Lieutenant Meyran and Firefighter John Bellew died from the impact. The other men sustained severe and terrible injuries.

The Fire Department's investigation determined that the fire started in bedroom 4 in apartment 3-I, a third floor apartment rented by Rafael Castillo. Fire Marshall Ott of the Fire Department's Bureau of Fire Investigation determined that the fire was caused by a combination of incorrect fuses, faulty spliced extension cords, and overloaded outlets. Castillo used the extension cords to provide electricity to a room he created by illegally erecting a partition. Fire Marshall Ott gave his expert opinion that the combination of the higher amps in the fuse box and overloaded and spliced wires caused the insulation on the extension cord wires to deteriorate over time, leading to a short and a spark that ignited bedding materials in bedroom 4. The investigation also revealed that an illegal partition had been erected in apartment 4-L, the fourth floor apartment from which the firefighters jumped.

Fire Marshall Ott was also able to determine the path of the fire and how the partitions affected the behavior of the fire. He explained that because fire travels in the path of least resistance, upwards and outwards like a funnel, the fire in bedroom 4 of apartment 3-I burned through the ceiling and up into bedroom 4 of apartment 4-L. This determination was based on the fact that the fire did not burn through the ceiling of the partition hallway in apartment 3-I because the door to bedroom 4 was closed. As the fire built in intensity within the bedroom in apartment 4-L, it spread out into the hallway created by the partition, from ceiling to floor, moved into the kitchen, and to the main hallway of the apartment. When the air in bedroom 4 in apartment 4-L reached 1200 degrees, the fire exploded and traveled up the main hallway and into the front bedrooms where the firefighters were trapped. Fire Marshall Ott explained that without the partition, the fire would have traveled out of bedroom 4, both higher and cooler, and it would have dispersed the heat further before traveling to the next room. He also explained that his knowledge was based on years of training and experience and that a layperson would not understand how fire travels or how a partition would affect a fire.

At the time of the fire, the LLC, whose sole member was Leslie Berman, had owned the building for about a year. Cesar Rios, the prior owner for 20 years, continued to serve as the building's de facto manager. The LLC continued Rios's employment of Rafael Rodriguez, the superintendent, and Amarylis German, a tenant who helped to collect the rents. Rios continued to collect rents, sign rent receipts, and give orders to the superintendent. Rios's cell phone number was the only number given to the employees to call in the event of an emergency. In fact, because of Rios's active involvement in the building, Rafael Rodriguez was not sure who owned the building at the time of the fire.

Rafael Castillo rented and occupied apartment 3-I with his family and also rented some of its rooms to people unrelated to him. Caridad Coste rented and occupied apartment 4K with her family, and rented 4-L which she sublet to people unrelated to her. Both of these lessees admitted to investigators after the fire that they had built partitions in their apartments. Castillo and Coste each built the partitions in their apartments in the same location — next to the fire escape window, creating a narrow hallway, and blocking direct access to the fire escape from all [*7]rooms except the rear bedroom.

In their original configurations, each apartment had a central room with five points of entry and egress.^[FN5] This central room had an open doorway into the main hallway of the apartment, French doors to the room adjacent to it, a window to the fire escape,^[FN6] a door to the rear bedroom that provided another window to the fire escape, and a swinging door to the kitchen. In sealing off the room from the rest of the apartment, the lessees locked the French doors, installed a door in the open doorway to the main hall, and built a partition that created a narrow hallway from the swinging kitchen door to the fire escape window and bedroom 4. As a result, the only way to access the fire escape and bedroom 4 in each apartment was the narrow hallway created by the partitions.

In building the partitions, Castillo and Coste violated the Multiple Dwelling Law, which applies to single room occupancies, in several ways. The partitions obstructed and failed to provide an alternative secondary means of egress for each newly created room, and they obstructed and failed to provide a suitable secondary means of egress for the rest of the apartment. The extra bedrooms also allowed an unlawful number of people to reside in each apartment.^[FN7] No building or electrical code violations were ever issued for any condition in the building.

There was no evidence that Rios himself was ever in apartment 3-I or 4-L. The superintendent, Rafael Rodriguez, on the other hand, routinely went into the apartments in the building to paint and make repairs. Sometime in the summer before the fire, Rios ordered Rodriguez to take down the partition in apartment 3-I, which he did. He never learned why he was removing it or how Rios learned it was there.

After Rodriguez tore down the partition in 3-I, Rios continually spoke to Amarylis German to "verify" if Castillo rebuilt the partition. About a week before the fire, Rios spoke to German and told her that he heard that Castillo had, in fact, rebuilt the partition. German lied to Rios when he asked if the wall had been rebuilt and said that she would look into it when Castillo returned from the Dominican Republic. Rios told her that there would be trouble when Castillo got back from his trip because he had tenants in the house, and also said that he would go to the apartment with the landlord when Castillo returned, take pictures, and take Castillo to court.

As to apartment 4-L, about a year and a half before the fire, Rodriguez was in the apartment and observed a man with sheetrock and 2x4's of lumber in the space that would become bedroom 3. When Rodriguez painted the apartment a short time later, he saw the partition and a newly added door to the room that was built. Unlike other apartments in the building, 4-L had individual room locks, some of which were locked when Mr. Rodriguez went in to paint the apartment.

Although Rodriguez talked to Rios about repairs that were needed in the apartments, he [*8]was certain that he never told Rios about the partitions and that he never saw Rios or the new owner, Leslie Berman, go into either apartment 3-I or 4-L.

Legal Analysis

To prevail on a motion to set aside a verdict pursuant to CPL §330.30(1), there must be a "ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." Defendants argue that the court should have dismissed the charges against them because the evidence was legally insufficient to sustain any of the charges.^[FN8]

In reviewing the legal sufficiency of the trial evidence, the court must "determine whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People." (People v Williams, 84 NY2d 925, 926 [1994] [citations omitted]). The court is well aware that its authority is limited to reviewing legal sufficiency, and not the weight of the evidence, which is reserved for the appellate courts. (People v Rayam, 94 NY2d 557 [2000]). In reviewing the evidence in the light most favorable to the People, the court must give the People the benefit of every favorable reasonable inference that can be drawn from the evidence.

Cause of Death

Defendants raised a number of significant issues regarding the legal sufficiency of the evidence concerning the cause of death of the firefighters both in their motions to dismiss and in their CPL §330.30 motions. Defendants argued that the conditions created by the tenants were not reasonably foreseeable causes of the firefighters' deaths. Specifically, defendants claimed that they were in no position to foresee the specific cause of the fire,^[FN9] the specific victims or the specific manner of death. They also argued that intervening causes, and not the partitions, caused the firefighters' deaths. The People took the position that although the electrical hazard caused [*9]the fire, it was the illegal partition in 4-L that was the actual contributory, and reasonably foreseeable, cause of death.

"[A] person's conduct is a sufficiently direct cause of death when the conduct is an actual contributory cause of the death, and when the death was a reasonably foreseeable result of the conduct." (CJI2d[NY] Penal Law art 125, Cause of Death. People v Matos, 83 NY2d 509, 511 [1994]). For the partition to be an actual contributory cause of death, it had to "forge a link in the chain of causes which actually brought about the death — in other words, when the conduct set in motion or continued in motion the events which ultimately resulted in the death." (CJI2d[NY] Penal Law art 125, Cause of Death. People v Stewart, 40 NY2d 692, 697 [1976]). The People maintain that the partition was an actual contributory cause of death for three reasons. First, the partition's location made the fire burn and travel in such a way that it trapped the firefighters; second, the partition hid the extension of the fire from the firefighters' sight and their thermal imaging equipment; and third, it restricted access to the fire escape from all areas of the apartment except for the narrow hallway and the back bedroom. This was legally sufficient evidence upon which the jury could find the partition was an actual contributory cause of the firefighters' deaths.^[FN10]

Whether death was a foreseeable result of the partition in its location near the fire escape, presents a much more difficult issue. "Death is a reasonably foreseeable result of a person's conduct when the death should have been foreseen as being reasonably related to the actor's conduct. It is not required that the death was the inevitable result or even the most likely result." (CJI2d[NY] Penal Law art 125, Cause of Death. See People v Kibbe, 35 NY2d 407, 412 [1974]). Although the partition affected the way in which the fire burned and traveled, the People's expert, Fire Marshall Ott, testified that it was only his years of training and experience that enabled him to understand the nature of fire and how it burns and travels. According to Fire Marshall Ott, a layperson could not appreciate this and, therefore, could not have foreseen the effect the partition would have on a fire. For the same reason, the court finds that it was not reasonably foreseeable that the partition would create an additional barrier to the effective use of the firefighters' thermal imaging equipment.

The question remains, however, whether it was reasonably foreseeable that the partition's location, in and of itself, would cause a death in a fire. That is, were the firefighters' deaths reasonably related to the creation of the partition? The partition was not built directly in front of the fire escape. It was built into the wall immediately next to the fire escape window, creating a very narrow hallway that left access to the window and its fire escape, although not directly from any rooms in the apartment. The placement of the partition forced occupants to go around the partition and through the kitchen to access the hallway and the fire escape. At the time of the [*10]fire, as the fire burned in the back room adjacent to this hallway, Firefighter DiBernardo was in the front bedroom, and Firefighters Cool, Stolowski, Cawley, and Lieutenant Meyran were in the second bedroom at the front of the apartment. Firefighter Bellew was in the window of the partitioned room, only a few feet away from the fire escape, with his access to the fire escape window completely blocked by the illegal partition. Without the partition, Lieutenant Meyran and the other men could have gone through the French doors (which Coste had locked), between the rooms and then through the fire escape window.^[FN11]

In support of their position that evidence of the illegal partition alone was sufficient to support the verdicts, the People rely on People v Deitsche (97 AD2d 327, 336 [2d Dept 1983], appeal denied, 62 NY2d 619 [1984]) and People v Reyes (75 NY2d 590 [1990]), two cases involving fire-related deaths. The facts of these cases are distinguishable.^[FN12]

In People v Deitsche, a worker died when he became trapped in a warehouse fire. The defendants in the case were a textile corporation, its president, and his brother. The conditions that led to the fire and the death included the storing of voluminous bales of cloth that left only narrow aisles for walking, exits to fire escapes that were completely hidden on two of the floors, the absence of sprinklers, elevator doors that remained open, and internal self-closing fireproof stairway doors that were propped open and rendered inoperable. It was in the context of these multiple hazardous conditions that the Second Department held that "the defendants cannot escape liability simply because those unsafe conditions were not the sole cause of death . . . [and] [w]e can see no bar to . . . criminal liability for deaths caused by a fire upon one who maintains . . . a firetrap, no matter what the cause of the fire." (Deitsche, 97 AD2d at 336 [citations omitted]). The Deitsche Court found the conditions to be an actual contributory cause of death, and the death foreseeable.

In People v Reyes, a case most similar on its facts to this case, it was the landlord defendant himself who created an illegal SRO and then entered into a lease for another person to manage the building while defendant retained ownership. The building was rife with electrical violations issued to defendant, and a fire caused by these electrical deficiencies killed a tenant. The Court of Appeals upheld the landlord's indictment for Criminally Negligent Homicide based on the numerous electrical hazards and structural deficiencies that facilitated the spread of the fire, and held that it was reasonably foreseeable that the conditions created a substantial and [*11]unjustifiable risk of death or injury in a fire. (Reyes, 75 NY2d at 593).

Here, whether death by fire was foreseeable based on the single fire hazard of the partition's restriction of access to the fire escape is a difficult question. But given that the court cannot engage in a weight of the evidence analysis and that the evidence must be viewed in the light most favorable to the People, the court finds that there was legally sufficient evidence for the jury to find that the firefighters' deaths were a reasonably foreseeable result of the erection of the illegal partition.

However, because there was no evidence that defendants Rios and the LLC knew of the partition and the other hazardous conditions in the apartments, the verdicts must be set aside.

Defendant Rios's Individual Liability

To convict defendant Rios of Criminally Negligent Homicide, the jury had to find that defendant, acting with criminal negligence, caused the deaths of the firefighters. (PL §125.10). "A person acts with criminal negligence with respect to a death when [he] engages in blameworthy conduct so serious that it creates or contributes to a substantial and unjustifiable risk that another person's death will occur." (CJI2d[NY] Penal Law §125.10. PL §§15.05[4]; 125.10). Defendant must also fail to perceive the risk, and the risk must be "of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." (PL §15.05[4]).

The level of carelessness that is required for this crime is appreciably more serious than that required for ordinary civil negligence. It requires "not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it." (People v Boutin, 75 NY2d 692, 695-96 [1990]; see also People v Cabrera, 10 NY3d 370, 375-76 [2008] [citing People v Conway, 6 NY3d 869 [2006]]).

Because Rios himself did not create the conditions in the apartments that caused the deaths of the firefighters, his criminal liability was predicated on conduct by omission. As defined in Penal Law §15.00(3), an omission is "a failure to perform an act as to which a duty of performance is imposed by law." Rios continued to act as the building's manager on behalf of the LLC, after the building was sold. As such, the duty of performance imposed on him was the duty to keep the building in good repair according to Multiple Dwelling Law §78.^[FN13] The People's theory was that, pursuant to this statute, a building's owner or manager is obligated to take measures to remedy hazardous or illegal conditions that tenants create within their apartments.

Rios's failure to perform his duty to alleviate the illegal and dangerous conditions is the conduct that must have created or contributed to the substantial and unjustifiable risk of the firefighters' deaths. For Rios to perform this duty or, conversely, to find that he failed to perform this duty, he had, of course, to know that the conditions existed. For purposes of this motion, the court assumes that the failure by a landlord to remedy hazardous conditions created by tenants is [*12]the type of blameworthy conduct that can support a verdict of criminal negligence. (See Boutin, 75 NY2d at 696; see e.g. Reyes, 75 NY2d at 593).

To convict Rios of Reckless Endangerment in the Second Degree, the jury had to find that he recklessly engaged in conduct which created a substantial risk of serious physical injury to another person. (PL §120.20). Unlike Criminally Negligent Homicide, Reckless Endangerment requires that the actor actually be aware of, and consciously disregard that risk. (PL §15.05[3]). But as with Criminally Negligent Homicide, this crime also required proof that Rios knew of the conditions in the apartments before he could be convicted.

To hold an individual responsible for a criminal offense, the People must show actual knowledge. In a criminal case, unlike in a civil matter, knowledge of one individual cannot be imputed to another. (See e.g. People v Rivera, 184 AD2d 288 [1st Dept 1992] [co-defendant's specific intent to rob victim cannot be imputed to defendant where defendant participated in assault and there was no evidence that he knew of co-defendant's intentions], appeal dismissed, 81 NY2d 758). Although a passive party may be culpable where criminal liability is predicated upon the "failure to perform an act as to which a duty of performance is imposed by law" (PL §15.00[3]), the passive party may not be held liable in the absence of proof from which a jury can infer that the passive defendant was even aware of the circumstances that would trigger the duty of performance. (People v Wong, 81 NY2d 600, 608-09 [1993]). Before a jury could find that Rios failed in his duty regarding the conditions that actually caused or contributed to the deaths of the firefighters, the jury first had to find that Rios had actual knowledge of them. It is on this fundamental issue that the People's evidence failed completely.

It is important to note that Rios did not create any of the conditions in the apartments. The electrical hazards and the illegal partitions were created solely by Castillo and Coste within the privacy of the apartments that they rented from Rios. Neither Castillo nor Coste sought permission to build the partitions, and they were not aided by anyone working for Rios or the LLC. The fire was not caused by any electrical problem in the building itself, but only by the manner in which Castillo misused the electricity supplied to his apartment. In fact, the evidence showed that there was no record of any building code or electrical violation issued against the building.

The People depended solely on circumstantial evidence to attempt to prove Rios's actual knowledge of the conditions. For the jury to convict Rios based on circumstantial evidence of his knowledge, they were entitled to draw reasonable and logical inferences from proven facts. (See People v Benzinger, 36 NY2d 29, 32 [1974]). The inferences argued by the People, however, were neither reasonable nor logical, and called for the jurors to engage in speculation and conjecture. Therefore, even when viewed in the light most favorable to the People, there was no valid line of reasoning or permissible inferences from the evidence that could lead a rational person to conclude that Rios knew of the conditions in the apartments. (See People v Williams, 84 NY2d at 926).

There was no evidence that Rios himself was ever in either of the apartments. Because there was evidence that Rafael Rodriguez, the superintendent, was routinely in the apartments to paint and to make repairs, the People relied heavily on Rodriguez's presence in the apartments to argue that Rodriguez "must have known" of the conditions, that Rodriguez "must have told" Rios, and so Rios "must have known" about the conditions inside apartments 3-I and 4-L. These mere assumptions were not a substitute for logical and reasonable inferences. [*13]

There was no evidence that Rios knew about the electrical hazard in apartment 3-I. The People urged the jury to conclude that because Rodriguez was in the apartment he "must have seen" the extension cords, and so he "must have" told Rios about them. This argument called for the jury not to draw a reasonable inference but to speculate. There was no evidence that a tenant or anyone else told Rios about these particular electrical conditions. Nor was there any evidence that the hazard created by the tenant in apartment 3-I affected other parts of the building that might have led Rios to investigate the electrical conditions inside the apartment. There was simply no evidence that Rios knew of the hazardous conditions in 3-I that actually caused the fire.

As to the illegal partition in Castillo's apartment, there was only problematic evidence. Rios ordered the superintendent to take down the partition, which Rodriguez did. There was no evidence of when he learned of the partition or that he even knew where this partition was located in apartment 3-I. The evidence showed that after the partition was torn down, Rios continually attempted to verify with Amarylis German that the partition was not rebuilt. About a week before the fire, Rios went to German and told her that he heard that Castillo had rebuilt the partition. When asked if it was true, German lied. At that point, Rios told her that when Castillo returned from the Dominican Republic, Rios would come back to take pictures and if the wall was there the landlord would take Castillo to court.

Assuming this evidence was sufficient to show that Rios had actual knowledge of the rebuilt partition's existence in 3-I on the date of the fire, there was no evidence that he knew where this partition was located. Moreover, the evidence demonstrated that Rios intended to confirm only what he heard and then perform his legal duty under the Multiple Dwelling Law to rid the apartment of the illegal partition, this time through Housing Court.^[FN14]

Most significantly, the People presented no evidence that this rebuilt partition in any way caused or contributed to the deaths of the firefighters. On the contrary, the People's expert testified that the fire extended up to the fourth floor from the bedroom below, and not from the partitioned hallway, because the door to that bedroom was closed. To the extent there was any proof that the 3-I partition caused the fire to travel in a certain direction, the People's own expert admitted that a layperson could not understand or reasonably foresee the behavior of a fire.

Assuming Rios knew the partition in 3-I was rebuilt, that knowledge did not in any way support an inference that Rios knew that an illegal partition also existed in apartment 4-L. There was no evidence that Rios actually knew of the partition in 4-L. Although the evidence showed that Rios knew that Coste rented 4-L to sublet its rooms to non-family members,^[FN15] this knowledge alone was insufficient to establish that Rios knew how many rooms were being [*14]rented, let alone whether a partition had been built to create an additional bedroom, or where it was located.

The People did present evidence that Rafael Rodriguez, the superintendent, knew of the partition in 4-L. About a year and a half before the fire, Rodriguez was inside apartment 4-L and observed a man standing next to 2x4's of lumber and sheetrock in what would later become the additional bedroom. He was again in the apartment a short time later and saw a new partition as well as a new door to that room.

Based on Rodriguez's knowledge, the People relied upon the following series of "inferences" to demonstrate that Rios "knew" of the partition and the hazard it created:

[W]here the evidence established that . . . Rodriguez always informed . . . Rios about the buildings [sic] need for repairs, the jury could have easily inferred that since . . . Rodriguez knew about the partition wall added to create an extra bedroom inside of apartment 4-L, then defendant Rios also knew about the wall. . . . [S]ince defendants had owned the building, collectively, for more than twenty years, then it would be reasonable to infer that they were very familiar with the layout of each apartment in that building. . . . It would also be reasonable to infer that they were aware of the location of the fire escapes in each apartment. Therefore, the jury could have reasonably concluded that if defendants were aware that a wall had been added to apartment 4-L, so that it created a space large enough to be . . . used as a bedroom, then their knowledge of the apartment's layout would suggest that they would know exactly where that would have to be built. Thus, because of their knowledge of the apartments [sic] layout, the jury could have inferred that defendants knew that the wall which was added to apartment 4-L not only created an additional bedroom, but it also blocked access to the apartment's fire escape.

These inferences upon inferences were not circumstantial evidence upon which the jury could properly have inferred guilt. These were not only unreasonable inferences, but the People's construct ignores the fact that Rodriguez, the People's own witness, testified that he never told Rios about the partition. Therefore, there was no valid line of reasoning or permissible inferences from the evidence presented that could have led a rational person to conclude that Rios knew of the conditions in the apartments. (See People v Williams, 84 NY2d at 926).

After reviewing the evidence in the light most favorable to the People, and giving the People every inference that is reasonable, the court finds that there was no evidence upon which a jury could have found that Rios had actual knowledge of the conditions in the apartments that led to the firefighters' deaths. Without proof of knowledge, the evidence was legally insufficient to support Rios's convictions for Criminally Negligent Homicide and Reckless Endangerment in the Second Degree. Accordingly, the court grants defendant Rios's motion and sets aside his convictions for Criminally Negligent Homicide and Reckless Endangerment in the Second Degree.

Defendant 234 East 178th Street, LLC's Liability

[*15]The LLC's criminal liability rested solely on Rios's liability.^[FN16] The LLC, as with any legal entity, could act only through its individual members or its agents and there was no evidence that Leslie Berman, the sole member of the LLC, had any knowledge of the conditions in the apartments. Although the Penal Law sets out principles of criminal liability for corporations in Article 20, no such statute exists for non-corporate entities. In the absence of a specific statute, the court determined that the principles in Penal Law §20.20 would correctly convey to the jury what was necessary to convict the LLC.^[FN17] In instructing the jury the court tracked the language of §20.20.^[FN18]

Penal Law §20.20(2)(b) provides, in relevant part, that "[a] corporation is guilty of an offense when . . . [t]he conduct constituting the offense is engaged in . . . or recklessly tolerated by . . . a high managerial agent acting within the scope of his employment and in behalf of the corporation." A high managerial agent is defined in PL §20.20(1)(b) as "an officer of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees." (See PL §20.20[1][b]). To find the LLC guilty of Criminally Negligent Homicide, the jury had to find first, that Rios was a high managerial agent and, second, that he either committed the crime himself or recklessly tolerated the crime that was committed by someone else.

Based on Rios's extensive continued involvement with the building after its sale, the evidence was legally sufficient to establish that Rios was a high managerial agent. Rios remained significantly involved in the building after it was sold to the LLC in January 2004. He routinely went to the building to collect rents and sign rent receipts. He continued to supervise the superintendent as well as Amarylis German, who helped collect the rents. His cell phone number was the only number given to the employees to call in the event of an emergency. In fact, Rios's direction to the superintendent to take the partition down in apartment 3-I came after the sale of the building. And as noted earlier, Rios told German a week before the fire that he and the landlord would take photographs of the apartment and that the landlord would take Castillo to court if the wall was rebuilt. Despite Rios's argument that he remained involved only to act as an interpreter for the new owner, who did not speak Spanish, the evidence showed that [*16]he acted no differently than when he had been the sole owner of the building for 20 years prior to the sale. When viewed in the light most favorable to the People, these facts are legally sufficient to support the jury's conclusion that Rios was a high managerial agent.

Although Rios could be found to be a high managerial agent of the LLC, the lack of evidence that Rios knew of the conditions that led to the firefighters' deaths, as discussed above, precludes the LLC's convictions for Criminally Negligent Homicide and Reckless Endangerment in the Second Degree. This same insufficient evidence regarding Rios's knowledge, likewise precluded a conviction under the theory that Rios, as high managerial agent "recklessly tolerated" the crimes committed by others.^[FN19] The court therefore grants defendant LLC's motion and sets aside its convictions for Criminally Negligent Homicide and Reckless Endangerment in the Second Degree.

In conclusion, defendants' motions to set aside the verdicts on the basis of juror misconduct are denied on the grounds that defendants have failed to meet their burden of establishing that the misconduct prejudiced a substantial right of defendants.

Defendants' motions to set aside the verdicts are granted in that the evidence was legally insufficient to establish that defendants knew of the conditions that caused the firefighters' deaths.

This opinion constitutes the decision and order of the court.

Dated:February 23, 2010

Bronx, New York

_______________________________

Margaret L. Clancy, Judge