On appeal from the Superior Court, Law Division, Camden County.
Long and Muir, Jr. The opinion of the court was delivered by Long, J.A.D.
Defendant Anthony Chiarulli entered a plea of guilty to a charge of violating N.J.S.A. 2C:17-1d. In support of the plea, defendant stated that he hired Ricky Williams to burn his Cadillac and agreed to pay Williams $300 from the insurance proceeds. According to defendant, Williams did burn the car but was apprehended before he could be paid.
In return for the plea, the State agreed to recommend that defendant be sentenced as if for a second degree crime and to dismiss other charges pending against him. Defendant was sentenced to a custodial term of eight years and received an appropriate Violent Crimes Compensation Board penalty. No challenge to the sentence is advanced.
Defendant appeals raising a single issue:
THE PROVISION IN N.J.S.A. 2C:17-1d THAT ONE WHO "DIRECTLY OR INDIRECTLY, PAYS OR ACCEPTS ANY FORM OF CONSIDERATION" FOR STARTING A FIRE COMMITS A CRIME IN THE FIRST DEGREE MAY NOT BE APPLIED TO A DEFENDANT WHO PROMISED SUCH PAYMENT.
In sum, defendant's argument is that his agreement to pay Williams out of the insurance proceeds falls outside the statutory language. He contends that the plain meaning of the word "pays" in the statute does not include a promise to pay in the future. Because he never obtained the insurance proceeds which were to provide the basis of his payment to Williams, defendant argues that he never "paid" Williams and therefore
did not provide an adequate factual basis for his plea. In our view, this is an unwarranted interpretation of the statute.
N.J.S.A. 2C:17-1d provides that:
Any person who, directly or indirectly, pays or accepts any form of consideration including, but not limited to, money or any other pecuniary benefit, for the purpose of starting a fire or causing an explosion in violation of this section commits a crime of the first degree.
The evil addressed by this statute is arson for hire. In using the broad legal term "directly or indirectly, pays . . . consideration", it seems to us that the Legislature intended that virtually any exchange of value to induce the setting of a fire would suffice for liability. In fact, the statute does not limit consideration to "money or any other pecuniary benefit." The exchange of any favor for the setting of a fire is what is proscribed. Here, defendant paid Williams with a promise to provide money in the future. Such a promise is the payment of consideration. See, e.g., Friedman v. Tappan Development Corp., 22 N.J. 523, 533-534 (1956); Summer v. Fabregas, 52 N.J. Super. 399, 406-407 (App.Div.1958); Hoffman v. Garden State Farms, Inc., 76 N.J. Super. 189, 197-198 (Ch. Div.1962). Indeed it is an exact parallel to the issuance of a check or other negotiable instrument except that the promise here was not evidenced by a writing. Like a check which is a promise to pay a sum certain in the future (N.J.S.A. 12A:3-104), the promise here is the payment of good and valuable consideration. See N.J.S.A. 12A:3-802 (a negotiable instrument extinguishes the obligation for which it is given until such time as it is dishonored). The mere fact that defendant's promise was conditional, or was contingent upon his receiving the insurance proceeds for the burned Cadillac, did not detract from its status as the payment of "consideration" under the statute. See City of Camden v. South Jersey Port Comm'n, 4 N.J. 357, 371 (1950); Hoffman v. Garden State Farms, Inc., supra, 76 N.J. Super. at 197-198.
In enacting this statute, the Legislature broke with the Model Penal Code's grading of arson offenses and ...