Which factor is required for NY Arson 1st Degree that is not required for 2nd Degree?

• A. Intentional burning
• B. Knew or should have known there is a person inside
• C. Using explosive or incendiary device
• D. Reckless burning

Answer: (C)

The level of arson is defined by the presence of a dangerous instrumentality: using an explosive or incendiary device to start the fire. This device elevates the offense to first degree because it significantly increases the risk of serious harm to people, beyond merely intentionally burning property. Intentional burning is the common element for arson at either degree, but the use of an explosive or incendiary device is what distinguishes the higher-grade offense. Reckless burning or simply knowing that someone is inside may be relevant to other charges or aggravating factors, but they do not establish the first-degree arson trigger. Hence, the required factor for first-degree arson that isn’t required for second-degree is the use of an explosive or incendiary device.