Opinion
November 3, 1941.
Present — Lazansky, P.J., Hagarty, Adel, Taylor and Close, JJ.
Judgment of the County Court of Kings County, convicting defendant of the crime of arson in the second degree, unanimously affirmed. There is direct and ample evidence that the fire was of incendiary origin. Kerosene was found burning on the floor on the left side of the store and near the rear partition, and kerosene was also found on the adjoining lower shelves and on stock consisting of dry goods. On the two lower shelves in the rear of the store, clothing, within envelopes or bags, was found, and both the bags and clothing smelled of kerosene. Candles were also found in these bags. On the other side of the rear partition, or in the rear room, a lighted candle was found underneath a table improvised from a board placed across the tops of two upright crates, and alongside of this lighted candle on the floor was a box of clothing, and on top of the improvised table clothing had been piled. The proof warranted the inference that the defendant was the incendiary. Motive was shown in that he stated that his volume of business had fallen off considerably and that one of his insurance policies had been obtained only four days prior to the fire. He had exclusive opportunity to fire the premises. He stated that he quit the premises at a time which was approximately fifteen minutes prior to the discovery of the fire. It was shown affirmatively that no one but the defendant had means of access to the store, the only door to which was double-locked, and the windows in which were barred from the outside, the premises being wired in connection with a burglar alarm system. The defendant was interrogated approximately six hours after the fire and, at that time, his shoes had a strong odor of kerosene. His explanation was that he had spilled kerosene in the rear room and had used a mop to clean up the spilled oil. There was no evidence of spilled kerosene oil at the place he indicated, and no odor of kerosene on the mop which he claimed to have used.