People v. Keech
| Decision Date | 26 September 1983 |
| Citation | 121 Misc.2d 368,467 N.Y.S.2d 786 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Larry A. KEECH, Defendant. |
| Court | New York Supreme Court |
Defendant, indicted for arson in the second degree (Penal Law § 150.15), three counts of arson in the third degree (Penal Law § 150.10), and two counts of criminal mischief in the fourth degree (Penal Law § 145.00), moves to dismiss counts one, three, four and six of the indictment for facial insufficiency, to dismiss all counts for alleged legal insufficiency of the evidence before the grand jury, and for a Sandoval hearing.
Count one of the indictment accuses defendant of second degree arson, committed as follows:
This incongruous situation is reversed by the proposed Article. Here, it is the two higher degrees--distinguished from each other by the relative danger of personal injury--that require 'intent to destroy or damage a building' (proposed §§ 155.10, 155.15), and it is the third degree that is satisfied by recklessness (proposed § 155.05) ..." 1964 Commission Staff Notes on the Proposed New York Penal Law, reprinted in Gilbert, Criminal Law and Procedure, 1982-83, at 2A-70.
Significantly, after submission of the 1964 Study Bill, in which intent was so critical, close attention was immediately given the statutory definition of "building" as it appeared in the statutes defining arson. Recognition of the new intent requirement is reflected in the decision to redefine "building" as that term is used in the arson statutes. The former definition, drawn from the burglary statutes, required that in a structure consisting of two or more units separately secured or occupied (e.g., an apartment house), each unit (apartment) be treated as a separate "building." As noted by the Commission,
"... Additional Commission Staff Comments on Changes in the New York Penal Law Since the 1964 Study Bill, reprinted in Gilbert, Criminal Law and Procedure, 1982-83 at 2A-144.
Second degree arson, insofar as relevant here, is defined in Penal Law § 150.15 as follows:
"A person is guilty of arson in the second degree when he intentionally damages a building ... by starting a fire, and when (a) another person who is not a participant in the crime is present in such building ... at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility ..." (emphasis added.)
The issues here are the sufficiency of the indictment, whether the proof supports it, and the accuracy of the instructions given the grand jury, concerning the element of intent.
Intent to start a fire and intent to damage a building are both required. Thus, even in fourth degree arson, based on intentionally starting a fire but only recklessly damaging a building, absence of intent to start a fire negates the crime, despite any recklessness as to the building. People v. Lebron, 68 App.Div.2d 836(9), 414 N.Y.S.2d 518 (1st Dept. 1979) ().
The proof before the grand jury here contains evidence of defendant's intent to start a fire, and to damage the garage where the fire was ignited. The indictment does not allege that defendant intended to damage the occupied building next door.
Only two reported cases decided after the 1965 Penal Law revisions appear relevant to the issue of intent.
In People v. Davis, 89 Misc.2d 535, 392 N.Y.S.2d 195 (Sup.Ct., Kings Co. 1977), the defendant evidently urged that second degree arson, under the current statute, be confined strictly to cases in which the fire "is startedin " the inhabited building. The Davis court understandably rejected defense counsel's contention that whether the fire was started within the inhabited building should be controlling. The reading of Penal Law § 150.15 urged by the defense in Davis would, in effect, have rewritten the statute to read "... damages a building by starting a fire therein ..." where it instead reads "... damages a building by starting a fire ..." The location at which ignition occurs, standing alone, neither proves nor disproves intent to damage an inhabited building, or any other element of second degree arson.
Davis went much farther, however, stating as what might seem a rule of law,
"... that when a perpetrator is accused of setting fire to an uninhabited building and the fire spreads to an adjacent inhabited building, such an occurrence is a foreseeable consequence of the original act without any supervening cause...." People v. Davis, supra, 89 Misc.2d at 539, 392 N.Y.S.2d at 197.
The issue, however, is intent, not causation. A result is intentional, under the Penal Law, when a person's "... conscious objective is...
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People v. Glover
...be more than a mere general intent to commit the crime. (Prejean v. State (Tex.App.1986) 704 S.W.2d 119, 121; People v. Keech (1983) 121 Misc.2d 368, 467 N.Y.S.2d 786, 788; State v. Walker (1984) 138 Ariz. 491, 675 P.2d 1310, The Arizona Supreme Court's interpretation of its arson statute i......
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People v. Makas
... ... Specifically, defendant did not admit that he intended to damage an occupied building by setting the fire (see, People v Keech, 121 Misc 2d 368, 371-372), that he actually damaged an occupied building (cf., People v Davis, 89 Misc 2d 535) or that he knew a person was present in the building which he set on fire. Rather than ascertaining that defendant intentionally damaged an occupied building, County Court negated that ... ...