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What is Arson in NYC?

Arson charges in New York involve allegations of the intentional destruction of property by fire or an explosion. The property at issue can be any type of property. However, New York Arson charges commonly involve allegations of intentional destruction by fire or an explosion of a physical structure like a building or a motor vehicle.

Under Arson laws, a building is defined broadly to include any structure and even vehicles. A motor vehicle is defined as anything that can be driven on a road such as cars or motorcycles. Under New York Arson charges, damage to the property does not need to be complete destruction. New York defines damage to property from Arson as the slightest damage, such as even charring of a portion of property.

Degrees of New York Arson Charges

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Types of Defenses to Arson Charges in New York

In criminal law, the burden to prove a crime is always on the prosecutor. However, some criminal laws have safety valves built into them, which are known as an affirmative defense. Unlike the typical burden in a criminal prosecution, the affirmative defense rests on the defendant.

Arson Defense Lawyer in NYCMore importantly, the prosecution’s burden in a criminal case is proof beyond a reasonable doubt, which is a very high standard. The burden of proof for a defendant where there is an affirmative defense is only by a preponderance of the evidence, which is only more believable than not or 51%.

Unlike affirmative defenses, a complete defense to Arson negates the crime. Therefore, the burden to disprove a complete defense is on the prosecutor and by the high standard of proof beyond a reasonable doubt.

Complete Defenses to Arson

The most important defense to an Arson charge is that a person did not intentionally cause a fire or explosion. Although one of the degrees of Arson in New York merely requires recklessness. A skilled and knowledgeable defense attorney may be able to negate the intent in the charged Arson crime based on the facts and the possibility of an accident.

In New York, intentionally is defined in Penal Law Section 15.05(1), and requires a “conscious objective is to cause such result or to engage in such conduct.” Recklessly, which is defined in Penal Law Section 15.05(3), requires a person to be “aware of and consciously disregard a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

When an intent is required by an Arson charge it a complete defense that the fire or explosion that damaged property was accidental. When recklessness is included in an Arson charge an accident may be a defense to the charge, however, the question is fact specific. Whether a person acts recklessly or not may depend on if a risk of fire or explosion was known before the accident.

When applied to New York’s Arson laws when an intent is part of the law the prosecutor must prove beyond a reasonable doubt that the fire or explosion was intentionally caused by a person. That is a very high standard of proof. If recklessness is included in the Arson law, then the conscious disregard of a risk that is a gross deviation from a reasonable person’s standard is also a high standard to overcome. However, each case depends upon the specific facts and allegations.

Affirmative Defenses to Arson

There are 5 degrees of Arson crimes in New York only one of which is a misdemeanor and the rest are categorized as felonies. Many of the degrees of Arson have an affirmative defense built into the law.

The affirmative defenses in New York Arson laws, when available, commonly involve whether a person charged was the sole owner of the property that was allegedly damaged by Arson. If another person had an ownership interest in the property that is associated with an Arson charge then the affirmative defense may or may not apply.

Sentences in NYC Arson Cases

The types of punishments for the 5 degrees of Arson in New York range from the least serious crime to the most serious, from class A misdemeanor to A-I felony. Even if a person is charged with one of the four degrees of felony Arson, a skilled and experienced attorney may still be able to obtain a favorable plea bargain lessening the degree of the offense or even to a non-criminal outcome.

One of the crucial issues in Arson cases is the ability to make restitution for the property that was allegedly damaged. If a person charged with Arson can make restitution, that is repay the owner of the property that was allegedly damaged, then a more favorable outcome is a possibility. The ability to make restitution is one of many factors that a prosecutor will consider when deciding whether to and what kind of plea bargain to make.

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Arson in the Fifth Degree in New York

In New York, Arson in the Fifth Degree, Penal Law Section 150.01, is a class A misdemeanor.

Arson in the Fifth Degree may be charged when a person “intentionally damages property of another without consent of the owner by intentionally starting a fire or causing an explosion.”

As a class A misdemeanor, the maximum sentence for Arson in the Fifth Degree is 1 year in prison. However, misdemeanor Arson charges often lead to a favorable plea bargain to a non-criminal offense. Restitution for the damaged property may be required as part of any sentence of a plea bargain.

New York Arson in the Fifth Degree Defenses

New York’s Arson in the Fifth Degree has two important complete defenses built into the law. The first is a requirement of an intentional act. That means it is a complete defense if the property was damaged by accident. Second, Arson in the Fifth Degree requires that the damage to the property is without the consent of the owner. So, even if there is damage to property a by Arson person cannot be charged with Arson if the Fifth Degree if he or she owned the property. However, a person may be charged with a higher degree of Arson based on other circumstances.

Arson in the Fourth Degree in New York

Arson in the Fourth Degree, Penal Law Section 150.05, is a class E felony in New York

Arson in the Fourth Degree is similar to Arson in the Fifth Degree except is requires a reckless act instead of an intentional act. Therefore, Arson in the Fourth Degree may be charged when a person “recklessly damages a building or motor vehicle by intentionally starting a fire or
causing an explosion.”

As a class E felony, the crime carries a maximum sentence of 1 1/3 to 4 years in prison for a first felony conviction. There are, however, many other possible sentences for Arson in the Fourth Degree such as probation of up to 5 years, a split sentence of up to 6 months in prison and 5 years probation and a conditional discharge. In addition, a person who is found guilty of the crime may be required to make restitution to the owner of the damaged property.

Arson in the Fourth Degree Defenses in New York

Like the Fifth Degree crime, Arson in the Fourth Degree has two important defenses in the law. First, the crime requires a reckless act. That means it is a complete defense if the damaged property was not a result of a substantial and unjustifiable risk or a gross deviation from the standard of conduct of a reasonable person.

Second, it is an affirmative defense to Arson in the Fourth Degree “that no person other than the defendant had a possessory or proprietary interest” in the damaged property. That means that a defendant can prove that he or she was the sole owner. If so, the affirmative defense applies.

Arson in the Third Degree in New York

Arson in the Third Degree, Penal Law Section 150.10, is a class C felony in New York.

New York Arson LawyerArson in the Third Degree is charged when a person “intentionally damages a building or motor vehicle by starting a fire or causing an explosion.” The one important distinction with the Third Degree crime is that it applies to only two categories of property: buildings and motor vehicles.

The class C felony has a maximum sentence of 5 to 15 years and a minimum of 1 to 3 years in prison for a first-time felony offender. Prison is mandatory unless a judge makes a finding that prison is not in the public interest and justice would not be served because of the allegations, the history, character condition of the person charged.

New York Arson in the Third Degree Defenses

Like other New York Arson crimes, Arson in the Third Degree has two important defenses in the law. First, the law requires an intentional act. If the damage to the property was an accident, then it is a complete defense.

Second, the crime allows one affirmative defense that comes has three requirements: either no other person owns the property or all owners consented to the conduct, the intent was to destroy the property for a lawful and proper purpose and there was no reasonable ground to believe that the conduct might endanger the life or safety of another person or damage another building or motor vehicle.

Arson in the Second Degree in New York

In New York, Arson in the Second Degree, Penal Law Section 150.15, is a class B felony.

A person may be charged with Arson in the Second Degree is charged when a person “intentionally damages a building or motor vehicle by starting a fire.” The crime has two additional requirements:

  1. Another person who is not a participant in the crime is present in the building or motor vehicle at the time; and
  2. The person charged knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility.

In other words, Arson in the Second Degree requires some degree of knowledge that a person might be present. However, the crime does not require absolute certainty about the presence of another person.

The crime is class B violent felony has a mandatory minimum prison sentence of at least 5 years and a maximum sentence of 25 years in prison for a first felony offender. In addition, post-release supervision of between 2.5 to 5 years must be imposed. However, if the alleged crime is related to domestic violence, then a person may be sentenced to a minimum of 3 to 6 years in prison and a maximum of 12 ½ to 25 years.

NY Arson in the Second Degree Defenses

Arson in the Second Degree has one important defense in the law. The law requires an intentional act. If the damage to the property was an accident, then it is a complete defense. The crime does not have an affirmative defense like other degrees of Arson in New York.

Arson in the First Degree in New York

In New York, Arson in the Second Degree, Penal Law Section 150.20, is a class A-1 felony, has a maximum term of life in prison.

Arson in the First Degree is charged when a person “intentionally damages a building or motor vehicle by causing an explosion or a fire.” The crime has several additional requirements:

  1. The explosion or fire is caused by an incendiary device propelled, thrown or placed inside or near such building or motor vehicle; or when such explosion or fire is caused by an explosive or when the explosion or fire either;
    • Causes serious physical injury to another person other than a participant; or
    • The explosion or fire was caused with the expectation or receipt of financial advantage or pecuniary profit by the actor;
  2. Another person who is not a participant in the crime is present in the building or motor vehicle at the time; and
  3. The person charged knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility.

For the purposes of Arson in the First Degree, “incendiary device” is defined as “a breakable container designed to explode or produce uncontained combustion upon impact, containing flammable liquid and having a wick or a similar device capable of being ignited.”

Like the Second Degree crime, Arson in the First Degree requires some degree of knowledge that a person might be present, but nor absolute certainty about the presence of another person.

Arson in the First Degree Sentencing

The crime is class A-1 violent felony and carries a maximum sentence of life in prison. The minimum sentence is 15 years to life and the maximum sentence ins 25 years to life.

However, the sentence is altered under two circumstances. First, if the conviction is as a Hate Crime, then the minimum sentence must be at least 20 years in prison. Second, if the conviction is related to Terrorism then the sentence must be life without parole.

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Hiring a New York City Arson Lawyer

The criminal justice system is complex and can be intimidating and confusing, especially in New York. Hiring the right New York Arson defense attorney is crucial in achieving the best possible outcome when one is charged with Arson in NYC.

The best New York City Arson lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Arson charges, and aggressively defending people against Arson charges in New York.

Speak With a NYC Arson Attorney Today

If you or a loved one is charged with Arson in New York City, we’re here to help. Contacting an Arson lawyer early in your case is important to preserve evidence that might be destroyed.  A knowledgeable and aggressive Arson lawyer may be able to have the charges completely dismissed based on the facts that are different in every case. In the alternative, an Arson lawyer may be able to negotiate a favorable bargain to a non-criminal outcome or a lesser charge.

Contact The Law Firm of Andrew M. Stengel

Contact us via the live chat below, through our contact form here, or call us at  (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

Our offices are located at 11 Broadway, Suite 615, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.

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