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Criminal Defense Attorneys Explain the Law on Arson (Penal Law Chapter 150)

Posted By Galluzzo and Arnone LLP || 7-Nov-2011

New York's Penal Law Chapter 150 criminalizes arson and the setting of destructive fires. Generally speaking, the most important factors in determining the severity of any arson charges that might apply to the criminal conduct are: 1) the intent of the perpetrator of the crime, 2) the nature of the property that was damaged, and 3) the risk that the fire posed to human life. Arson charges can carry significant jail penalties, so it is important for anybody charged with arson to be represented by an experienced and intelligent attorney.

The least serious arson charge is Arson in the Fifth Degree, Penal Law Section 150.01. This is a Class A misdemeanor with a maximum penalty of one year in jail. A person is guilty of this crime when "he or she intentionally damages property of another without consent of the owner by intentionally starting a fire or causing an explosion." As you can probably tell from the statute, a person is not guilty of arson if they burn their own property without putting anybody else's person or property at risk. For example, it is not Arson in the Fifth Degree (or criminal arson of any kind) for me to burn my photograph of my ex-girlfriend by throwing it in the fire in my fireplace. However, it would be Arson in the Fifth Degree for my ex-girlfriend to intentionally burn my clothes that way. (This example is purely hypothetical, naturally).

Arson in the Fourth Degree, Penal Law Section 150.05, is a Class E non-violent felony with a maximum penalty of four years in jail and no mandatory minimum. There are two different subsections. Subsection 1 explains: "a person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion." In a nutshell, for a person to "recklessly" damage a building means that he or she didn't purposefully intend to burn the building, but he or she knew that there was a real risk that the fire he or she started might damage the building. So, for example, a person who intentionally sets fire to a shrub close to a house may not have meant to burn down the house, but obviously, he or she would have had to have known that that sort of fire could spread to the house. An interesting question would be whether someone who falls asleep on a sofa with a lit cigarette could be charged with Arson in the Fourth Degree if the fire spread enough to damage the sofa and the building; we expect that they probably could.

Subsection 2 of Arson in the Fourth Degree provides an affirmative defense, however: a person is not guilty of the crime if "no person other than the defendant had a possessory interest in the building or motor vehicle." Thus, one cannot be charged with Arson in Fourth Degree if the aforementioned cigarette on the sofa accidentally causes that person's house to burn down, but doesn't damage a building or motor vehicle belonging to anyone else.

Arson in the Third Degree, Penal Law Section 150.10, is a Class C violent felony with a minimum jail sentence of 3.5 years and a maximum of 15. A person is guilty of this crime if he or she "intentionally damages a building or motor vehicle by starting a fire or causing an explosion." (Subsection 2 provides an exception for the destruction of buildings for lawful purposes, such as demolition). However, this charge is elevated to Arson in the Second Degree (Penal Law Section 150.15, a Class B violent felony with a minimum jail sentence of five years and a maximum of twenty-five) where another non-participating person was in the building or motor vehicle at the time, and the perpetrator "knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility."

Finally, Arson in the First Degree, Penal Law Section 150.20 is a Class A-I violent felony with a minimum jail sentence of from fifteen years to life and a maximum of from twenty-five years to life. This is a very serious crime on par with Murder in the Second Degree. A person is guilty of this crime when he or she commits Arson in the Second Degree with some complicated aggravating factors. Those factors include: the perpetrator's use of an explosive or incendiary device to start the fire or explosion, whether a person was seriously injured, and whether the arson was committed in order to profit financially. Specifically, the statute reads as follows:

A person is guilty of arson in the first degree when he intentionally damages a building or motor vehicle by causing a fire or explosion and when (a) such explosion or fire is caused by an incendiary device propelled, thrown or placed inside or near such building or motor vehicle; or when such explosion or fire is caused by an explosive; or when such explosion or fire either (i) causes serious physical injury to another person other than a participant, or (ii) the explosion or fire was caused with the expectation or receipt of financial advantage or pecuniary profit by the actor; and when (b) another person who is not a participant in the crime is present in such building or motor vehicle at the time; and (c) the defendant knows that facts or circumstances are such as to render the presence of such person therein a reasonable possibility.

[NOTE: Chapter 150 also provides a few definitions for the charges described above. First, a "building" as defined in the context of arson includes (in addition to its ordinary meaning) "any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein. Where a building consists of two or more units separately secured or occupied, each unit shall not be deemed a separate building." Thus, this definition obviously applies to recreational vehicles and boats with overnight sleeping quarters. It can also potentially apply to commercial freight vehicles as well. The definition of "motor vehicle" as used in the chapter includes "every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power, except (a) electrically-driven invalid chairs being operated or driven by an invalid, (b) vehicles which run only upon rails or tracks, and (c) snowmobiles." Obviously, then, bicycles and trains are not "motor vehicles" for the purposes of this section. Finally, an "incendiary device" means a breakable container designed to explode or produce uncontained combustion upon impact, containing flammable liquid and having a wick or similar device capable of being ignited. See Penal Law Section 150.20(2). Clearly, this covers the "Molotov cocktail" among other bomb-like items.]

Arson trials frequently involve the testimony of a very specialized expert witness: the arson investigator. Typically, Fire Marshalls with the FDNY are asked to employ their specialized expertise towards analyzing the cause of a fire, the damage done by a fire, and/or the risk that a fire might have posed. To combat this testimony typically employed by prosecutors, criminal defense attorneys routinely retain retired Fire Marshalls in private practice. Most oftentimes, these prosecution experts at trial are trying to help the government prove that the fire was not an accident.

In cases where the evidence strongly suggests that a fire was intentionally set (and not an accident), the next hurdle for a prosecutor is proving the identity of the perpetrator. Of course, a client should never speak to the police or any other investigator if he or she is being investigated for a possible arson case, because sometimes an admission by the perpetrator is the only way for the prosecution to prove the perpetrator's identity. Prosecutors will also look to see whether there might have been a financial motive for the arson (say, in the case where someone might have burned down their own home or business to try to collect on an insurance policy), or if the owner of the property had any ongoing disputes with anyone else that might have perpetrated the arson (say, for example, an ex-girlfriend). Finally, depending on the circumstances of the arson, a person that commits Arson under Penal Law Chapter 150 may also be exposed to a variety of other criminal charges, such as Murder in the Second Degree (Penal Law Section 125.25[3]), Attempted Murder in the Second Degree (Penal Law Section 110/125.25), Reckless Endangerment in the First or Second Degree (Penal Law Sections 120.20 and 120.25), Criminal Mischief (see Penal Law Chapter 145), Insurance Fraud [see Penal Law Chapter 176], Endangering the Welfare of a Child (Penal Law Section 260.10), or even in the most extreme cases, the crime of Terrorism (Penal Law Section 490.25).

If you or a loved one have been charged with Arson and/or any Arson-related crimes, you should strongly consider contacting the experienced and aggressive criminal defense attorneys at Galluzzo & Arnone LLP. Their team of lawyers includes three former Manhattan prosecutors that have both prosecuted and defended numerous arson cases in their careers, and thus they have valuable insight into the best ways to defend them. Give them a call today to schedule a free consultation and receive a fair quote for their services.

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