PEOPLE of the State of New York, Respondent,

Mark Robert WROBLEWSKI, Appellant
Supreme Court, Appellate Division,
Fourth Department
109 A.D.2d 39 (1985)
HANCOCK, Justice:

 Defendant was convicted after a jury trial of two counts of felony murder  (Penal Law § 125.25[3]) (the fifth and sixth counts of the indictment) for causing the deaths of Susan Rees and Jason Hanlin, her son, by starting a fire in the two-family dwelling at 88 Spaulding Street in Buffalo where they resided.  The jury found defendant not guilty of intentional murder (Penal Law § 125.25[1]) (counts one and two) and, in view of the convictions for felony murder, did not consider the charges of depraved indifference murder (Penal Law § 125.25[2]) (counts three and four).  The jury also acquitted defendant of arson, second degree (the seventh count), the only arson crime included in the indictment.  As the predicate felony for the felony murder counts, the court charged the crime of arson, fourth degree.  Arson, fourth degree, however, was not submitted to the jury as a lesser included offense of arson, second degree.

 We find no merit to defendant's argument that the evidence adduced at trial was legally insufficient to establish his guilt.  Assuming, as we find herein, that defendant's incriminating statements should not have been suppressed, there is ample evidence to support the jury's finding that defendant committed the crime of arson, fourth degree and that in the course of committing that crime he caused the deaths (Penal Law § 125.25[3]).  In his formal written statement defendant admitted that he had been at the scene of the fire and had dropped a newspaper [p. 41] after scorching his hand when his lighter flamed up as he lit a cigarette, but he denied knowing that the paper was on fire.  Defendant told his girlfriend in the presence of police that he had set the fire.  The proof showed that the fire had been deliberately started, that an accelerant had been used, that defendant had a motive (i.e., to get even with an occupant of the building with whom he'd had a fight), that defendant had been seen in the area and had asked a man on the street for matches prior to the fire, and that on the morning of the tragedy witnesses saw defendant (who lived seven miles away) sitting on the porch of a nearby house watching the fire, laughing at one point, crying at another, and saying, "there go my friends", and, "hey I am sorry".

 Defendant, however, aside from sufficiency of the evidence, advances other grounds for reversal including:  . . . (2) that the court erred in submitting arson, fourth degree, a crime which was not charged in the indictment or as a lesser included offense, as the predicate crime for the felony murder counts.  For reasons hereinafter stated, we reject these and other contentions and conclude that there should be an affirmance.

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 We turn to the claimed errors during trial.  Defendant excepted to the court's decision to use arson, fourth degree, as the underlying felony in its charge on felony murder, but there was no other exception to the charge.  As noted, arson, second degree, but not arson, fourth degree, was charged as a count in the indictment.  The court, in view of defendant's objection, declined to charge arson, fourth degree, as a lesser included offense of arson, second degree, and thus, the crime of arson, fourth degree, was submitted to the jury not as a separate offense but only in its capacity as a predicate offense for felony murder.

 On appeal defendant argues that the jury's not guilty verdict for arson, second degree (which requires findings that the defendant intended both to start the fire and to damage the building [Penal Law § 150-15]) [n. 2] must, on the record here, be interpreted as a finding by the jury that the defendant did not intentionally start the fire.  It follows, then, defendant argues, that the jury could not consistently have found that defendant caused the deaths during the commission of the crime of arson, fourth degree (Penal Law § 150.05 [1]), [n. 3] because an intentional starting of the fire is a necessary element of arson, fourth degree, also.  The argument must fail.  The verdict of not guilty of arson, second degree, does not establish that the fire was not started intentionally, for a defendant must be acquitted of arson, second degree even though he starts a fire intentionally if he [p. 44] does not also intend the resulting damage to the building.  He can, however, be found guilty of arson, fourth degree, for causing unintentional damage to a building resulting from a fire that was intentionally started.  On the evidence here, the jury could have been convinced that defendant lit the fire on purpose, yet unconvinced beyond a reasonable doubt that he intended any damage to the structure.  Defendant rejects this explanation of the acquittal on the arson, second degree, charge, however, and argues that it is highly improbable, given the proof that an accellerant was used, that the jury, if it found that defendant started the fire intentionally, would not also have found that defendant intended damage to the building.  We disagree.  The evidence on whether an accelerant was used (suggesting that defendant must have intended an extensive burning which would damage the building) was conflicting and defendant's words and actions following the fire could be taken to mean that he had not meant it to spread or to endanger anyone.  Thus, a finding that defendant was guilty of felony murder for causing the deaths during the commission of arson, fourth degree (which requires a finding that defendant started the fire intentionally and damaged the building recklessly but not intentionally) is not inconsistent with the acquittal on the arson, second degree, charge.

2. "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" (Penal Law § 150.15).

3. "A person is guilty of arson in the fourth degree when he recklessly damages a building * * * by intentionally starting a fire * * * " (Penal Law § 150.05[1]).

 Nor, under the circumstances here, do we find any error in the court's decision to charge the elements of arson, fourth degree, as the predicate for felony murder despite the fact that the jury was not asked to determine defendant's guilt of arson, fourth degree, as a separately charged substantive crime.  It is settled that a felony murder conviction may stand even if the underlying felony which serves as its predicate is not submitted to the jury (see People v. Scott, 93 A.D.2d 754, 755, 461 N.Y.S.2d 309) or if the underlying felony has been dismissed (see People v. Davis, 46 N.Y.2d 780, 413 N.Y.S.2d 911, 386 N.E.2d 823;  People v. Murray, 40 N.Y.2d 327, 386 N.Y.S.2d 691, 353 N.E.2d 605;  cert. den. 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796;  see also People v. Gibson, 65 A.D.2d 235, 411 N.Y.S.2d 71, cert. den. 444 U.S. 861, 100 S.Ct. 127, 62 L.Ed.2d 83, where we upheld the felony murder conviction on the ground that the proof supported a finding that the death occurred in the course of an attempted robbery, although attempted robbery was not charged in the indictment or as a lesser included offense).

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 We have examined defendant's other arguments on appeal and find them to be without merit.  The judgment should be affirmed.

 Judgment unanimously affirmed.