Santana argues that NYPL ยง 150.15 does not necessarily involve the use of fire against the โproperty of another,โ as arson in the second degree may be committed by a person setting fire to property he owns himself. See Shepherd v. People, 19 N.Y. 537, 542 (1859); People v. Rosen, 251 A.D. 584, 297 N.Y.S. 877, 880 (3d Dep't 1937). Damage to property of another, however, is not required for purposes of ยง 16(b). Because NYPL ยง 150.15 always requires the presence of someone in the building, that presence creates a substantial risk in every case that physical force may be used against another.
Defendants are entitled to a full and fair disclosure of facts. It is only when they are armed with knowledge of the facts that they can determine whether to accept or reject a juror. If the prosecution had submitted answering affidavits sufficient to challenge the movant's statements at the time the trial court disposed of the motion, the trial court might have been justified in denying a hearing on the issues raised thereby. ( People v. Rosen, 251 App. Div. 584, affd. 275 N.Y. 627.) Since on the motion it was uncontroverted that the juror did not reveal that he was a member of an auxiliary police force, we think further proof should be taken by affidavit or oral testimony in order that the trial court, before passing on the merits of the application for a new trial, and this court, shall be fully informed as to all the circumstances relating to the questioning on the voir dire as it pertained to the particular juror. The final determination of this appeal will be withheld so that the defendant may promptly renew in the Supreme Court, Erie County, the motion for a new trial, upon affidavits and notice to the District Attorney, as limited by the Per Curiam opinion herein.
After the juror was selected in this case, the juror told his son the name of the Assistant District Attorney (hereinafter ADA) who was prosecuting, and the son informed his father that he worked in the same unit with the ADA. At no time thereafter did the juror reveal to the court his knowledge of these facts. It is the duty of a prospective juror to truthfully answer voir dire questions regarding his qualifications, and he should not keep silent if, in good conscience, he must reveal facts which he has reason to believe would render him unacceptable (see, People v. Rosen, 251 App. Div. 584). To succeed in setting aside a verdict pursuant to CPL 440.10 (1) (f), the moving party must show concealment of facts, bias, or prejudice (see, Holland v. Blake, 38 A.D.2d 344, affd 31 N.Y.2d 734; People v. Rosen, supra).
Litigants are entitled to a full and fair disclosure of all the facts. It is the duty of a prospective juror to answer truthfully questions of him as to his qualifications and he should not keep silent if, in good conscience, he ought to reveal facts which he has reason to believe would render him unacceptable. ( People v. Rosen, 251 App. Div. 584, 591; Glens Falls Ind. Co. v. Fredella, 241 App. Div. 637.) To succeed in setting aside a verdict of the jury on the ground that a juror had not truthfully responded to questions put to him, the moving party must show concealment of facts, bias or prejudice. ( Luster v. Schwarz, 35 A.D.2d 872, 873-874.
The reception of the evidence on insurance was nevertheless relevant on motive. ( People v. Lewis, 275 N.Y. 33; People v. Rosen, 251 App. Div. 584, affd. 275 N.Y. 627.) The testimony disclosed there was no sign of forcible entry.
The court denied the motion, finding, without a hearing, that the juror had been interrogated and had answered in the affirmative. A hearing was not necessary ( People v. Winship, 309 N.Y. 311; People v. Rosen, 251 App. Div. 584, affd. 275 N.Y. 627) although it might have been helpful in subjecting the opposing contentions to the scrutiny of cross-examination. Nevertheless, the presence of this aspect of the case makes even more imperative that this court be convinced that the trial was scrupulously fair and free from prejudicial error. Section 542 of the Code of Criminal Procedure was enacted as a reaction against reversals of convictions upon technical errors which had not affected the result or the substantial rights of a defendant.
We hold to the contrary. As we said in People v. Rosen ( 251 App. Div. 584, 587, affd. 275 N.Y. 627): "The indictment need not set forth all the elements of the crime. (Code Crim. Proc. ยงยง 284, 285, 295-b, 295-c, 295-h.)