Senate Bill S503

                                 BILL NUMBER:  S503

 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 Bartha 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 :
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 :
Immediately.