BILL NUMBER: S396

SPONSOR: LANZA
 
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 inten-
tionally 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 flamm-
able 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 stric-
ter 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 automo-
bile, as retaliation against residents who reported such drug activity.
The judge dismissed the part of indictment concluding that the automo-
bile 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 indi-
cation 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:

2018: S.2616 - Third Reading Calendar / A.3161 - Referred to Codes
2017: S.2616 - Passed Senate / A.3161 - Referred to Codes
2016: S.3480 - Passed Senate / A.9681 - Referred to Codes
2015: S.3480 - Passed Senate
2014: S.4162 Passed Senate / A.6184 - 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.