On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-812.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Gilroy and Chambers.
Defendant Sean M. Daly appeals his conviction on one count of aggravated arson, N.J.S.A. 2C:17-1(a)(3) (second degree) and two counts of arson N.J.S.A. 2C:17-1(b)(1) and (2) (third degree). The trial court downgraded his aggravated arson conviction for sentencing purposes under N.J.S.A. 2C:44-1(f)(2), and sentenced defendant to concurrent terms of three years of imprisonment on each conviction. On its cross-appeal, the State challenges the sentence imposed.
At trial, the State presented proofs that on September 23, 2006, fires started at two locations in defendant's apartment, which was part of a multifamily building containing eight apartment units. The fire marshal determined that the fires originated in the kitchen and the bedroom. While no accelerants were used, the fire marshal concluded that the fires were caused by direct ignition. A matchbook cover was found among the debris in the kitchen. No one was injured as a result of the fires.
Defendant did not testify at the trial, but his two conflicting statements to the police about what happened were presented to the jury. On the day of the fire, defendant told the police that he had left his apartment at about 6:30 p.m. with his friend Charles C. Cornaglia, and that everything was in order at that time. He was "baffled" by the fire. In a second statement given two days later, defendant said that Cornaglia had tossed a lit cigarette into plaintiff's bedroom, that the two got into a physical altercation, and that when they saw the comforter on the bed in flames, they left the apartment.
Cornaglia testified that on the day in question he had gone to defendant's apartment, where defendant told him he was looking for a loan of $40,000. While Cornaglia denied smoking inside of the apartment, he admitted that he smoked outside of it for about two to four minutes before defendant exited the apartment, and they left. At the time of the fire, defendant had a $40,000 renter's insurance policy, and he filed his claim against the policy the day after the fire.
Defendant, twenty-one years old at the time of the fire, had no prior criminal convictions. He previously worked for over a year at the Camden County Department of Corrections; however, he had recently left that job, aspiring to work as a State corrections officer.
The jury acquitted defendant of the charge of aggravated arson for purposely setting the fire and "purposely or knowingly placing another person in danger of death or bodily injury,"
N.J.S.A. 2C:17-1(a)(1), but found him guilty of the lesser included offense of arson for purposely starting the fire and "recklessly placing another person in danger of death or bodily injury," N.J.S.A. 2C:17-1(b)(1). The jury also acquitted defendant of the charge of aggravated arson for purposely starting the fire "[w]ith the purpose of destroying a building or structure of another," N.J.S.A. 2C:17-1(a)(2), but found him guilty of the lesser included offense of arson for "recklessly" doing so, N.J.S.A. 2C:17-1(b)(2). The jury did convict defendant of the charge of aggravated arson for purposely starting the fire "[w]ith the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury," N.J.S.A. 2C:17-1(a)(3).
At sentencing, the trial court found deterrence to be an aggravating factor. N.J.S.A. 2C:44-1(a)(9). The trial court found the following mitigating factors: (6) defendant will compensate the victim for the crime, N.J.S.A. 2C:44-1(b)(6) (the court ordered restitution in the sum of $81,000 as part of the sentence); (7) defendant had no prior contact with the criminal justice system, N.J.S.A. 2C:44-1(b)(7); (8) defendant's conduct resulted from circumstances unlikely to reoccur, N.J.S.A. 2C:44-1(b)(8); and (9) in light of defendant's character and attitude, he is unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9) (the trial court noted the numerous character witnesses and letters for defendant). The trial court gave mitigating factors 6, 7 and 9 the heaviest weight, and after weighing the aggravating factor and the mitigating factors, qualitatively as well as quantitatively, the court found that the mitigating factors clearly outweighed the aggravating factor. While the trial court rejected defendant's argument that the presumption of incarceration had been overcome, it did grant his request that he be sentenced as though convicted of a crime one degree lower as permitted by N.J.S.A. 2C:44-1(f)(2). Defendant was sentenced to three years on each of the three convictions, the sentences to run concurrently.
On appeal, defendant raises the ...