UPDATE: DA Charges JetBlue’s Steven Slater with Felony Reckless Endangerment and Criminal Mischief – A Classic Overcharge?

I previously assessed, albeit briefly, the possible criminal charges that JetBlue flight attendant Steven Slater might face in Queens County for opening the emergency door and sliding onto the tarmac. These offenses included the misdemeanors of Reckless Endangerment in the Second Degree, Criminal Mischief in the Fourth Degree and Criminal Trespass in the Third Degree. Unfortunately for Mr. Slater, it appears as if the Queens District Attorney’s Office has not merely charged him with misdemeanors after his arrest stemming from the JFK incident. Instead, they have thrown something more serious against the wall hoping that it will stick. Mr. Slater now faces Reckless Endangerment in the First Degree and Criminal Mischief in the Second Degree. Both of these crimes are “D” felonies punishable by up to seven years in prison.

Reckless Endangerment in the First Degree Charged with Reckless Endangerment in the First Degree (New York 120.25), Mr. Slater’s actions must be more wanton than Reckless Endangerment in the Second Degree (New York Penal Law 120.20). In fact, the standard for that crime is that Mr. Slater must have acted with “depraved indifference to human life” and recklessly created a “grave risk of death to another person.”

The criminal court complaint against Mr. Slater alleges that the basis for this charge is that the emergency escape slide is released with so much pressure that it could have killed one of the ground crew. Despite the allegation in the criminal complaint, where was the ground crew at the time? Had the plane stopped completely? Were there people working in the immediate “hittable” area from the slide? Did Mr. Slater know there would be or were people below the plain? What made his reckless actions “depraved” with a disregard for human life?

If there were no workers in the area and the people on board did not run the risk of death, again, what is the is the basis of his “depraved indifference to human life” that created this “grave risk of death?” Sadly, that question cannot be answered because the criminal complaint does not set forth whether people, if any, were in close proximity to the death machine (aka the slide). Could it be that nobody was near it at all? If they were, why is this not contained in the complaint? Unfortunately for the prosecution, factual impossibility is a defense to Reckless Endangerment. See People v. Galatro, 84 N.Y.2d 160 (1994). If nobody was actually in danger other than in a theoretical nature, Reckless Endangerment cannot be proven beyond a reasonable doubt. Criminal Mischief in the Second Degree

Criminal Mischief in the Second Degree (New York Penal Law 145.10) requires an intentional damaging of property where that damage exceeds $1,500. Prosecutors attempt to establish the intentional damaging on the part of Mr. Slater by setting forth in the criminal complaint his alleged admission that he intentionally opened the emergency exits and released the slide. This may be true, but was his intent to cause damage or was his intent to escape his anxiety on the plane? These are two separate issues. Intent to leave and use the emergency escape is NOT the same thing as intending to damage it.

There is little doubt that Mr. Slater’s actions were “bad.” There is little doubt that the Queens District Attorney’s Office wants to send a message by charging the (former?) flight attendant with felonies. Arguably, the law needs to be changed to punish the actions of Mr. Slater More severely. While it makes good press, in this particular case, there is little doubt that that these felony charges should not stick.

For further information on the crime of New York Reckless Endangerment in the Second Degree, please follow the highlighted link. Additional information on New York Criminal Mischief in the Fourth Degree and New York Criminal Trespass can be found on the respective links as well. To read about other New York Penal Law statutes, legal decisions and recent cases, please review the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland PC is a New York criminal defense firm. Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represent the accused throughout the New York City region.

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