The Appellate Division continued: In other words, instead of classifying arson as a form of assault, the Legislature classified it as a property crime, based on setting a fire. But, the Legislature chose to grade fire-setting more seriously if it endangered human life. See Senate Judiciary Committee Statement to Senate, No. 738 (May 15, 1978). The Legislature also intended to fractionalize arson, in the sense that a defendant can be charged and punished for setting the fire, in addition to being charged and punished for assault and murder based on the injury or death caused by the fire. See Miller, (addressing fractionalizing of offenses); State v. Mirault, (1983). Thus, an arson conviction does not merge with accompanying assault or homicide convictions. Nonetheless, that does not mean that a defendant can be charged with multiple counts of arson for setting one fire.
The State relies on the following language from Craig: “the view that there are as many crimes committed as there are victims finds overwhelming support in other jurisdictions.” However, that language refers to multiple counts of assault or homicide, not multiple counts of arson. Two of the cases that Craig cited in support of the quoted language involved arson. In both cases, a defendant was charged with one count of arson, and multiple counts of attempted murder or aggravated assault. See Neal v. State, 357 P.2d 839, 841 (Cal. 1960); State v. Rieck, 286 N.W.2d 724, 725 (Minn. 1979). We cannot accept the State’s argument.
Although it is not binding on us, we find support for our conclusion in Handy v. State, 803 A.2d 937 (Del. 2002), decided by the Supreme Court of Delaware. In Handy, the State charged the defendant with multiple counts of attempted murder and multiple counts of arson, for setting one fire that endangered several victims. In construing Delaware’s arson statute, the court traced the history of the statute back to the common law and concluded that historically, arson statutes contemplated that arson should be “one single, serious charge based on the fact that fire is inherently, and unpredictably, destructive.” The court held that “a charge of multiple counts of first degree arson for multiple intended victims based on a single fire constitutes an unconstitutional multiplicity prohibited by the Double Jeopardy Clause.” The court reasoned that “the basis of the crime of arson is directed to the property,” while the presence of endangered inhabitants was “one element in fixing the degree of arson.”
This case is an example of an issue of first impression that the State likely waited to present until the New Jersey Supreme Court’s balance of power shifted towards law enforcement. The shift occurred with former Governor Christie’s appointment of numerous judges, including four of the seven state supreme court justices.