Establishes a person is guilty of arson in the first degree when he intentionally damages a building or motor vehicle by causing an explosion or a fire and when such explosion or fire is accelerated by use of ignitable liquid or flammable gas.
Ayes (60): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (3): Adams, O'Mara, Parker
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: 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.
STATE OF NEW YORK ________________________________________________________________________ 4162 2013-2014 Regular Sessions IN SENATE March 12, 2013 ___________Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to arson in the first degree THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 150.20 of the penal law, as amended by chapter 950 of the laws of 1984, is amended to read as follows: S 150.20 Arson in the first degree. 1. A person is guilty of arson in the first degree when he inten- tionally damages a building or motor vehicle by causing an explosion or a fire and when (a) such explosion or fire is caused by OR ACCELERATED BY USE OF IGNITABLE LIQUID OR FLAMMABLE GAS OR an incendiary device propelled, thrown
[or], placed OR OTHERWISE DISPERSED OR DISTRIBUTED 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 expecta- tion 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 fact or the circumstances are such as to render the presence of such person therein a reasonable possibility. 2. As used in this section, "incendiary device" means a [breakable container]DEVICE designed to [explode or]produce uncontained combustion [upon impact, containing flammable liquid and having a wick or a similar device capable of being ignited]OR USED AS A SOURCE OF IGNITION. Arson in the first degree is a class A-I felony. S 2. This act shall take effect on the thirtieth day after it shall have become a law.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05450-01-3