We all love a daredevil. That spirit of the fearless facing of death causes us to root for him and makes us feel like we can do anything. New York City has a long love affair with daredevils. Frederick Laws successfully parachuted from the torch of the Statue of Liberty in 1912. That same decade, Harry “The Human Fly” Gardiner climbed the facade of the Flatiron Building. Perhaps the most famous New York daredevil was tightrope walker Philippe Petit, who in 1974 thrilled the City as he walked on a wire cable between the roofs of 1 and 2 World Trade Center. In 1977 Brooklyn toy maker George Willing used homemade equipment to scale the outside of 1 World Trade Center, a monumental three and a half hour ordeal. There have also been a number of parachute jumps off the World Trade Center buildings.
Are these acts by daredevils crimes in New York? And if so exactly what crime?
On Tuesday the First Department was confronted by these issues in People v Corliss, 2008 NY Slip Op 01869, which involved a prosecution for an attempted parachute jump off the Empire State Building.
The defendant Jebb Corliss was a renowned “BASE jumper”, an individual who attempts parachute jumps off of various types of structures: Buildings, Antennas, Spans [bridges], Earth [cliffs]. On April 27, 2006, at approximately 5:00 pm he went up to the observation deck of the Empire State building wearing a prosthetic “fat suit” and mask to disguise his appearance and parachute equipment. When he emerged on the 86th floor observation deck, he removed his “fat suit” to expose his jumpsuit and a backpack containing a parachute, as well as a helmet with a camera mounted on it. He quickly scaled the security fence and arrived at the outer ledge of the building. Building security guards, who had been alerted of a possible jumper by an anonymous source, attempted to apprehend defendant. The defendant initially resisted but, after a struggle during which the security guards were situated on the inside of the security fence and defendant was on the outside, he was handcuffed to a rail and rendered unable to jump. When he informed the security guards that while tethered to the building in that position, his parachute could accidentally open, which could cause him fatal injuries, the guards cut the straps of the pack to remove the parachute. Defendant was ultimately removed from the ledge and arrested.
The defendant was subsequently indicted for reckless endangerment in the first degree (Penal Law § 120.25). A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. The Court of Appeals has interpreted this to require, “an utter disregard for the value of human life – a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (People v Feingold, 7 NY3d 288 ).
Following his arrest, defendant made several statements indicating that the attempted jump was the culmination of a long term dream, that he had carefully planned the jump over a 10-year period, that he never meant to harm anyone, and that he had studied the traffic patterns of the avenue below and timed his jump so he would land when the traffic lights on the avenue below were red and the avenue was clear. The defendant moved to dismiss the indictment arguing, inter alia, that the evidence before the grand jury was legally insufficient, and that the charge of reckless endangerment was legally inappropriate in that nothing he was alleged to have done could reasonably be perceived as constituting a depraved indifference to human life, or creating a grave risk of death to another person. He further argued that there was no law in New York making it illegal to jump off a bridge or a building, and that the concept of reckless endangerment does not encompass such conduct, particularly since, he suggested, the act of making such a jump constitutes constitutionally protected expression.
The motion court granted dismissal of the indictment. The motion court found that the defendant’s conduct was dangerous and ill-conceived, but it did not rise to the level of depraved indifference as defined by People v Feingold, 7 NY3d 288. The motion court noted that the defendant attempted to maximize his chances of landing when traffic was stopped, which, according to the court, suggested that rather than indifference to the risk of harm to others, the defendant took affirmative steps to mitigate the risk and ensure the safety of others. The motion court concluded that “[h]owever outrageous this stunt was, the evidence before the grand jury demonstrates that defendant took steps to avert risk to others.”
The First Department agreed with the motion court that the charge of reckless endangerment in the first degree (Penal Law § 120.25) could not be sustained both because the grand jury was improperly charged on the mens rea element of reckless endangerment in the first degree, and because the evidence was insufficient to establish that charge.
However, the First Department found that evidence before the grand jury was sufficient to establish the lesser included offense of reckless endangerment in the second degree (Penal Law § 120.20). And thus, the motion court should have ordered the reduction of the charge to that offense rather than dismissing the indictment entirely. A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. The First Department rejected as specious the defendant’s suggestion that nothing in the Penal Law prohibited parachuting off tall buildings and into the middle of a busy city street. The Court stated that such conduct was clearly encompassed within the reckless endangerment statutes, which are aimed generally at “perilous conduct.” In addition, the Court found that even though he was stopped from jumping his attempts were enough to put people at risk stating:
Climbing over the security fence, to a position where, according to one security guard, he appeared ready to jump off the building, in itself put many people at risk. Not only were 30-to-40 mile per hour winds gusting out of the north, making mishaps more likely, but even an accidental misstep, or a hand or object reaching through the security fence and accidentally pushing, rather than grabbing him, could have sent defendant into the air, where a faulty parachute would result in a likelihood of death not only for defendant but for people on the ground. Even a properly functioning parachute that landed a jumper safely might cause a variety of accidents. There were also risks that an object carried by or attached to defendant, or an object deployed through the fence by security guards to prevent defendant from jumping, could accidentally fall, and any such object would become a lethal projectile along the way. Additionally, the actions defendant took created a risk of serious physical injury to building security staff whose job it was to try to stop him from making the jump, and even bystanders in the vicinity were endangered by the ensuing struggle.
Thus, the First Department reinstated the indictment by reducing the charge to the lesser included offense of reckless endangerment in the second degree (Penal Law § 120.20).
So, Jebb Corliss may be a criminal of a lesser type, but admit it, don’t you just love this kind of criminal?