People v. Smith

Appeal by the People from so much of an amended order of the County Court, Nassau County (Boklan, J.), entered March 19, 2001, as granted those branches of the defendants’ respective omnibus motions which were to dismiss count one of the indictment charging them with arson in the third degree.

*598Ordered that the amended order is reversed insofar as appealed from, on the law, those branches of the defendants’ respective omnibus motions which were to dismiss count one of the indictment are denied, count one of the indictment is reinstated, and the matter is remitted to the County Court, Nassau County, for further proceedings on the indictment.

We agree with the County Court, Nassau County, that a statement by the People’s fire investigator, in the course of his Grand Jury testimony, “supported the People’s theory that the fire was deliberately set” (see, People v Goldberg, 215 AD2d 402). Thus, the testimony violated the rule against an arson investigator expressing an opinion that a particular fire was caused by arson (see, People v Goldberg, supra; People v Johnson, 186 AD2d 584; People v Abreu, 114 AD2d 853). However, in light of all of the facts of this case, including that the remaining admissible evidence was more than sufficient to sustain an arson count, the improper comment did not impair the integrity of the Grand Jury proceeding or lead to the possibility of prejudice against the defendants (see, People v Huston, 88 NY2d 400). Accordingly, the County Court improperly dismissed the arson count of the indictment. McGinity, J. P., Luciano, Feuerstein and Prudenti, JJ., concur.