Super. 435, 440 (Resent. Panel 1980), aff’d, 181 N.J.
Super. (App. Div. 1981).
A promise to pay suffices for an arson-for-hire
conviction. The arson-for-hire statutory language is
broader than the murder-for-hire statutory language.
State v. Chiarulli, 234 N.J. Super. 192, 194-95 (App.
Div.), certif. denied, 117 N.J. 643 (1989). Defendant
was not entitled to the reversal of his conviction for
attempted arson, where the State’s destruction of the
Molotov cocktail was not done in bad faith, the evidence
had no apparent exculpatory value, and the expert who
conducted a test on the flammable device was available for
cross-examination. State v. Serrett, 198 N.J. Super. 21, 27
(App. Div. 1984), certif. denied, 101 N.J. 217 (1985).
III. DEFENSES
Intoxication is not a defense when the statute
defendant was charged with violating did not require a
specific intent to burn. State v. Kinlaw, 150 N.J. Super.
70, 74 (App. Div. 1977).
IV. SEARCH
The prompt on-the-scene investigation of an
uninhabitable dwelling following a suspicious fire which
caused death of a child was not a Fourth Amendment
search requiring a search warrant. State v. Vader, 114 N.J.
Super. 260, 262 (App. Div. 1971), certif. denied, 63 N.J.
252 (1973).
Although no warrant is required to permit
firefighters to enter premises in order to control a blaze
and conduct an immediate investigation, any subsequent
entry into the building in order to gather evidence for a
possible arson prosecution must be governed by a
showing of probable cause. Michigan v. Tyler, 436 U.S.
499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).
Defendant, who was suspected of arson using
gasoline as an accelerant, and whose car was properly
stopped, was subjected to a proper search of the trunk,
since, as the defendant stepped from the car, a strong odor
of gasoline emanated. State v. Schubert, 235 N.J. Super.
212, 225 (App. Div. 1989), certif. denied, 121 N.J. 597,
cert. denied, 496 U.S. 911, 110 S.Ct. 2600, 110 L.Ed.2d
280 (1990).
V. MERGER
In State v. Lewis, 223 N.J. Super. 145 (App. Div.),
certif. denied, 111 N.J. 584 (1988), defendant was
convicted of first-degree aggravated manslaughter,
second-degree aggravated arson, six counts of second-
degree aggravated assault, and one count of second-
degree burglary. The Appellate Division rejected
defendant’s argument that the offenses should have been
merged for purposes of sentencing and held that
aggravated manslaughter (N.J.S.A. 2C:11-4a) and
aggravated arson (N.J.S.A. 2C:17-1a(1)) are separate
crimes which require different proofs and, therefore, are
inappropriate for merger.In a felony murder prosecution, where arson was the
predicate felony, the Court must instruct the jury
regarding the predicate felony first, followed by a
necessary contingency instruction regarding a finding of
felony murder. State v. Grey, 147 N.J. 4, 16-17 (1996).
In Grey, the jury acquitted defendant of arson and
convicted him of felony murder. The Supreme Court
vacated the felony murder conviction because of the
absent necessary contingency instruction.Failure to instruct the jury on causation, where it is
a central issue, will result in the reversal of an arson felony-
murder conviction. State v. Martin, 119 N.J. 2, 34
(1990).Where there is a rational basis, criminal mischief
(N.J.S.A. 2C:17-3) and improper behavior (N.J.S.A.
2C:33-2a) are lesser included offenses to arson. State v.
Figueroa, 237 N.J. Super. 215 (App. Div. 1989), certif.
denied, 121 N.J. 643 (1990).VI. DOUBLE JEOPARDY
The State was not precluded on principles of double
jeopardy or mandatory joinder from trying defendant for
arson after he was convicted in municipal court of filing
a false report (N.J.S.A. 2C:28-4b), a disorderly persons
offense. The matter was remanded to the trial court,
however, for a determination of whether the trial violated
principles of fundamental fairness. State v. Yoskowitz,
116 N.J. 679, 709-10 (1989).The State was not precluded on principles of double
jeopardy from trying defendant for arson after he was
acquitted in federal court of mail fraud, a crime which
involved the collection of insurance proceeds for the illicit
burning of the same property which was the subject of the
state indictment. State v. DiVentura, 187 N.J. Super.