Relates to arson in the first degree

BILL NUMBER:S3480

Title of bill

An act to amend the penal law, in relation to arson in the first degree

Purpose

This bill expands and clarifies the definition of arson in the first degree to include fires accelerate by various incendiary materials, and fires caused or accelerated by the use of flammable or combustible liquids or flammable gases.

Summary of provisions

This bill would expand and clarify the definition of arson in the first degree, section 150.20 of the Penal Law. Under the proposed amendment a person will be guilt of arson in the first degree if he or she intentionally damages a building or motor vehicle by causing and explosion or fire, when such an explosion or fire is cause by an incendiary device or an explosive or by utilizing a flammable or combustible liquid or flammable gas. Secondly, the definition of "incendiary device" would be expanded to include chemically or mechanically ignited devices. Finally, the bill would add a definition for the term "explosive" to the crime of arson in the first degree.

Justification

This bill, to expand the definition of arson in the first degree, would serve as a deterrent as first degree arson can be prosecuted with stricter penalties.

A broader arson law would avoid the result that occurred in People v. Fernandez, 569 N.Y.S. 2d 569 (N.Y. Co. Crim. Term April 11, 1991). In Fernandez, the defendants, described as members of a gang, repeatedly engaged in drug activity and were indicted under the first degree arson statue because they allegedly poured gasoline into an automobile, drove it into a building, and then threw a lit book of matches into an automobile, as retaliation against residents who reported such drug activity. The judge dismissed the part of indictment concluding that the automobile used to commence the fire was not an "incendiary device" under section 150.20 of the Penal Law.

The Judge also stated that, "if the Legislature wishes to raise the penalty for acts of terrorism... then it must once again redraft the first degree arson statue," 569 N.Y.S. 2d 573. More recently, on July 10, 2006, evidence supports that Dr. Nicholas Bertha rigged the main gas line in the basement of his Upper East Side home allowing large amounts of flammable natural gas to be released into the air. The explosion, an apparent attempt at suicide and to destroy the house as a result of a martial dispute, was devastating.

While the doctor ultimately died of his injuries prior to prosecution, It is not clear whether he could have been convicted of arson in the first degree since he apparently did not utilize any incendiary devices or explosives as defined in the current law. This is despite

the indication that the release of natural gas was a purposeful act. The acts alleged in the Fernandez case and the Upper East Side explosion should be subject to prosecution as first degree arson. Such prosecution would take place if the proposed amendment to the Penal Law were enacted.

Legislative history

2014: S4162 Passed Senate/A6184 Referred to Codes 2011-2012: S.2950 -Passed Senate / A.10424 - Referred to Codes 2010: S.503 - Referred to Codes/A.5917 - Referred to Codes 2009: S.503 - Referred to Codes/A.5917 - Referred to Codes 2008: S.5551 - Passed Senate/A.5248 - Referred to Codes 2007: S.5551 - Passed Senate/A.5248 - Referred to Codes 2006: S.5622 - Passed Senate/A.8905 Referred to Codes 2005: S.5622 - Passed Senate/A.8905 - Referred to Codes

Fiscal implications

Undetermined.

Effective date

This act shall take effect on the thirtieth day after it shall have become a law.