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JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s arson second conviction, determined the jury should have been instructed on the lesser included offense of arson fourth:

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The relevant difference between these crimes in this case is that second-degree arson involves intentionally damaging a building by starting a fire, while fourth-degree arson involves recklessly damaging a building by intentionally starting a fire … . Viewed in the light most favorable to defendant, there was a reasonable view of the evidence that he did not intend to damage his apartment, or any other part of the building, by setting a fire to a video game console, and that his sole object in doing so was to kill himself through smoke inhalation. It cannot be said that the only interpretation of defendant’s actions was that he intended to damage the building by fire. Although a natural and probable consequence of setting the fire was that the fire would damage the building, this did not conclusively establish such an intent, which was for the jury to decide … . On these facts, the jury could have found that, rather than actually intending to cause damage, defendant was “aware of and consciously disregard[ed] a substantial and unjustifiable risk that [damage would] occur” … . People v Acevedo, 2017 NY Slip Op 06626, First Dept 9-26-17

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, ARSON, JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSE (ARSON, JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))/ARSON (JURY SHOULD HAVE BEEN INSTRUCTED ON ARSON FOURTH (RECKLESS) AS A LESSER INCLUDED OF ARSON SECOND (INTENTIONAL), NEW TRIAL ORDERED (FIRST DEPT))

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