Felony Arson Charges in New York: What You Need to Know and Why Experienced Defense Counsel Matters
The author of this blog post, Matthew Galluzzo, is a former Manhattan prosecutor with over 25 years of experience practicing criminal law in New York. He has successfully defended numerous individuals accused of serious arson felonies throughout New York City.
Being accused of setting a fire in New York can have extraordinarily serious consequences. Depending upon the circumstances, a person can face a felony arson charge carrying the possibility of substantial prison time. Arson investigations also frequently involve fire marshals, police detectives, prosecutors, forensic experts, insurance companies, and other investigators working together to determine how a fire started and who may be responsible.
A person accused of arson should therefore avoid making assumptions about the case based simply on the fact that a fire occurred. The cause and origin of a fire, the defendant’s intent, the condition and ownership of the property, whether anyone was present, and the manner in which investigators obtained their evidence can all become critically important issues.
What Is Arson Under New York Law?
New York’s arson offenses are found in Article 150 of the New York Penal Law. The statute establishes five degrees of arson, ranging from fifth-degree arson, a misdemeanor, through first-degree arson, a Class A-I felony.
The felony arson offenses are:
- Arson in the Fourth Degree — Penal Law § 150.05
- Arson in the Third Degree — Penal Law § 150.10
- Arson in the Second Degree — Penal Law § 150.15
- Arson in the First Degree — Penal Law § 150.20
The precise degree depends upon several factors, including whether the defendant acted recklessly or intentionally, whether a building or motor vehicle was damaged, whether another person was present, whether anyone suffered serious physical injury, and whether the alleged fire involved an incendiary device, an explosive, or a financial motive.
Arson in the Fourth Degree — Penal Law § 150.05
Arson in the fourth degree is a Class E felony.
The statute generally applies when a person recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion. There is also an affirmative defense when no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle.
Because the offense is based upon recklessness rather than the more demanding intentional-damage requirement found in third-degree arson, questions concerning the defendant’s state of mind can be critical.
Arson in the Third Degree — Penal Law § 150.10
Arson in the third degree is a Class C felony.
The prosecution must establish that the defendant intentionally damaged a building or motor vehicle by starting a fire or causing an explosion.
The statute also provides an affirmative defense under certain circumstances involving the defendant’s possessory or proprietary interest in the property, the consent of other interested parties, the defendant’s lawful purpose, and the absence of reasonable grounds to believe that the conduct could endanger another person or damage another building or vehicle.
This means that a case involving an allegedly damaged building cannot necessarily be reduced to the simple question of whether the defendant started a fire. The prosecution must prove the legally required mental state and the other elements of the charged offense.
Arson in the Second Degree — Penal Law § 150.15
Arson in the second degree is a Class B felony.
This offense involves intentionally damaging a building or motor vehicle by starting a fire when:
- Another person who is not a participant in the crime is present in the building or vehicle; and
- The defendant knows that the person is present, or the circumstances make the person’s presence a reasonable possibility.
The presence of another person therefore dramatically increases the seriousness of the charge.
A defense attorney handling such a case must carefully examine what the defendant knew—or could reasonably have known—about the presence of other people.
Arson in the First Degree — Penal Law § 150.20
Arson in the first degree is the most serious arson offense under New York law and is a Class A-I felony.
The statute applies when a defendant intentionally damages a building or motor vehicle by causing a fire or explosion under particularly serious circumstances. Among other possibilities, the statute addresses fires or explosions involving an incendiary device or explosive, fires causing serious physical injury to a non-participant, and fires caused with an expectation or receipt of financial advantage or pecuniary profit. It also requires that a non-participant be present and that the defendant know that fact or that the circumstances make the person’s presence reasonably possible.
A first-degree arson prosecution can therefore expose a defendant to extremely severe consequences.
Potential Prison Sentences
The potential sentence depends upon the degree of arson, the defendant’s criminal history, whether the offense is treated as a violent felony, and other circumstances.
For an ordinary first felony conviction, New York’s general sentencing statute provides maximum terms of up to four years for a Class E felony, fifteen years for a Class C felony, and twenty-five years for a Class B felony, although the precise minimum and maximum sentence depends upon the applicable sentencing provisions and the defendant’s status.
First-degree arson presents an even more serious sentencing issue because it is a Class A-I felony.
Additionally, New York’s violent-felony sentencing provisions specifically identify an attempt to commit first-degree arson as a Class B violent felony.
A defendant should therefore never assume that a particular sentence is inevitable merely because an indictment contains an arson charge. The applicable sentencing exposure must be evaluated in light of the precise charge, the defendant’s prior record, and the facts alleged by the prosecution.
Fire Investigations Are Not Always as Simple as They Appear
Arson cases frequently depend upon an investigation into the origin and cause of a fire.
The government may rely upon:
- Fire marshal conclusions;
- Physical evidence from the scene;
- Burn patterns;
- Surveillance video;
- Witness statements;
- Cell-phone records;
- DNA or fingerprint evidence;
- Gasoline or accelerant testing;
- Electrical-system evidence;
- Insurance records;
- Financial information;
- Statements allegedly made by the defendant;
- Photographs and video;
- Expert testimony; and
- Evidence concerning the defendant’s activities before and after the fire.
But an investigation does not automatically establish criminal responsibility.
For example, determining that a fire was intentionally set does not necessarily establish who set it. Similarly, determining that a defendant was present at a location does not necessarily establish that the defendant intentionally caused the fire.
These distinctions can become central to an effective defense.
Why the Defense Investigation Matters
An effective arson defense may require much more than simply reviewing the indictment.
The defense attorney may need to investigate:
The origin of the fire
Where did the fire actually begin?
If the prosecution’s theory concerning the origin is incorrect, its entire theory of criminal responsibility may be undermined.
The cause of the fire
Was the fire deliberately set? Was it accidental? Was there an electrical failure, mechanical problem, heating-system issue, or another possible explanation?
The defendant’s intent
Intent is often one of the most important issues in an arson case.
A person may have been present when a fire started without intending to cause it. A person may have been engaged in conduct that was careless or reckless without possessing the specific intent required for a more serious arson charge.
The defendant’s relationship to the property
Ownership, possession, occupancy, employment, and other relationships to the property can matter under the statutory defenses and in determining what the defendant intended.
The presence of other people
In second- and first-degree arson cases, evidence concerning whether another person was present—and what the defendant knew about that person’s presence—can be critically important.
The government’s experts
Fire investigations often involve expert conclusions. Those conclusions should be examined rather than simply accepted.
A defense attorney may need to retain an independent fire investigator or other expert to determine whether the prosecution’s conclusions are scientifically and factually sound.
Why Someone Charged With Felony Arson Should Consider Matthew Galluzzo
A felony arson prosecution is precisely the type of case in which experience investigating and litigating serious felony cases matters.
Matthew Galluzzo is a former Manhattan prosecutor who now represents defendants accused of serious criminal offenses throughout New York. Matthew Galluzzo has represented defendants in several serious New York arson cases, including one defendant whose arson and reckless-endangerment charges arising from a major Queens apartment-building fire were ultimately dismissed. Matthew Galluzzo and his team prevailed in that matter by conducting their own investigation into the circumstances of the fire and presenting their findings to law enforcement.
Other past arson clients include one man charged with first-degree arson after a fire inside a church, a green-card holder accused in connection with the accidental burning of a multi-unit brownstone, and a green card holder accused of setting fire to his own restaurant. In those cases, the firm reported substantially favorable resolutions.
What Should You Do If You Are Being Investigated for Arson?
If you believe that you are being investigated for arson—even if you have not yet been arrested—you should consider speaking with a criminal-defense attorney immediately.
Do not assume that you need to wait until an arrest occurs.
You should also be extremely cautious about speaking with investigators without first consulting counsel. Statements made during an arson investigation can become important evidence in a subsequent prosecution.
If you have already been arrested or indicted, the need for immediate legal representation is even more obvious. The defense attorney should begin evaluating the evidence before memories disappear, surveillance footage is lost, physical evidence changes, or the prosecution’s theory becomes entrenched.
Contact Matthew Galluzzo About a New York Arson Case
Felony arson cases can threaten a person’s liberty, reputation, career, finances, immigration status, and family relationships. The consequences can be particularly severe when prosecutors allege that someone was injured, that other people were inside a building, that an explosive or incendiary device was used, or that the defendant acted for financial gain. If you or a family member is facing an arson investigation, arrest, or indictment in New York, contacting Matthew Galluzzo promptly can help ensure that the defense begins before critical evidence and strategic opportunities are lost.