Court: New Jersey Superior Court Appellate Division; December 7, 1989; New Jersey; State Appellate Court
Defendant was convicted of second-degree aggravated arson, sentenced to ten years in prison with five years before parole eligibility. Evidence presented showed that two accomplices, following defendant's orders, set a mattress on fire at the only exit of an abandoned building, aware that a police officer, Det. Mason, was inside conducting surveillance for drug activity. The officer escaped by jumping from the first story due to the fire. Prior to this incident, Det. Mason had directed a stop-and-search of defendant for suspected drug activity, which yielded no drugs. Following the search, defendant overheard instructions to search a nearby field where he allegedly discarded a white packet, leading to his anger towards the police. Testimony and a recorded statement from an accomplice indicated that the fire was set out of revenge, knowing Det. Mason was present.
Defendant raised several points on appeal: (I) the trial court improperly admitted extensive drug-related testimony; (II) the court should have declared a mistrial due to prejudicial comments by the assistant prosecutor regarding the presence of defendant's friends and family; (III) the court erred by not charging lesser included offenses; (IV) the verdict was against the weight of the evidence, warranting a new trial; (V) due process required a new trial due to the lack of a verbatim transcript; (VI) the sentence was excessive. The court found that points I, II, IV, V, and VI lacked merit, but noted that point III regarding the refusal to charge lesser included offenses needed consideration. The jury convicted defendant for deliberately placing Det. Mason in danger, while acquitting him of intending to destroy the building. The judge correctly determined there was insufficient evidence to support lesser charges related to the fire.
Defendant's involvement in setting the building on fire was found to be deliberate, as evidenced by the lack of a request for a third-degree arson charge, indicating that the evidence did not support a reckless culpability claim. While some criminal mischief and improper behavior can be purposeful or knowing, the court considered whether the judge erred in not charging these offenses. According to N.J.S.A. 2C:17-3a, criminal mischief occurs when a person purposely or knowingly damages another's property or recklessly causes damage through dangerous means. The court noted that criminal mischief is a lesser included offense of aggravated arson, which requires intent to destroy a structure. However, the jury acquitted the defendant of aggravated arson and convicted him of a crime against the person, indicating that any error from the judge's instruction omission was harmless.
The court emphasized that purposeful or knowing criminal mischief usually involves property damage without creating significant risk, unlike setting a building on fire. Additionally, N.J.S.A. 2C:33-2a(2) defines improper behavior as creating a hazardous condition recklessly, which does not equate to the intent behind aggravated arson when endangering individuals, such as a police officer inside the building. The ruling was affirmed, clarifying that the offense could range from a petty disorderly persons offense to a crime of the fourth or third degree, contingent on the pecuniary loss involved.
