A Criminal Defense to Reckless Endangerment: Factual Impossibility and New York Penal Law Sections 120.20 & 120.25

Reckless Endangerment, New York Penal Law sections 120.20 and 120.25, is either an “A” misdemeanor punishable by up to one year in jail or a “D” felony punishable by up to seven years in state prison. While I have defined Reckless Endangerment in the First and Second Degrees in other entries, if one acts reckless and causes a substantial risk of serious physical injury or death (or they act with a depraved indifference to human life), they are setting themselves up for this charge. Having said that, merely acting stupid does not mean one acted reckless in the eyes of the law. For example, speeding in a car after consuming alcohol may not be “reckless” in the eyes of the law even though you may ultimately be convicted of DWI. Other elements should be present and “fleshed out” in the accusation. In the scenario above, one may be driving dangerously, but where there other cars or pedestrians in the street? Did the accused almost hit them? How fast was he or she speeding? What were the road conditions? There are other important facts before one’s actions give rise to at least a “substantial risk” of not merely a small injury, but serious physical injury or a grave risk of death.

Keeping with the theme of what constitutes a the crime of Reckless Endangerment in New York, a question that is often addressed is whether or not factual impossibility is a defense to the crime in New York of Reckless Endangerment in the Second or First Degree. That answer is generally yes. A great non-legal way to look at this is as follows:

Person “A” fires a gun into a room. He actually believe that room is crowded full of people at a meeting. However, it is an empty room. Nobody is there. Certainly ill advised, his actions would not necessarily be reckless as there is no “substantial risk” or “depraved indifference” for human life where there is no risk of either “serious physical injury” or death. If nobody is there, there can be no risk and no injury. This is a very base definition of the legal concept of “Factual Impossibility.”

According to the Court of Appeals, New York’s top court, “Factual Impossibility” is a defense to Reckless Endangerment in the First and Second Degrees. See People v. Galatro, 84 N.Y.2d 160 (1994). Because the level of the risk on the part of the accused determines the level of the offense, if factually there can be no risk because it is impossible, then there can be no crime. See People v. Davis 72 N.Y.2d 32 (1988). As addressed in Davis, if a gun is inoperable and cannot fire a bullet, pointing that gun at someone cannot establish the requisite risk (although, other crimes may be perpetrated, ie, if the weapon is brandished in a robbery it can still raise the level of the felony offense even if the gun is ultimately found to be inoperable.).

The above cases merely touch on this concept of “Factual Impossibility.” Even if there is this impossibility as to Reckless Endangerment, it does not meant that other crimes cannot be established by the prosecution. Moreover, even though you may deem something factually impossible, a court, prosecutor or jury may disagree.

For further information on the crime of Reckless Endangerment in the First Degree (New York Penal Law 120.25) and Reckless Endangerment in the Second Degree (New York Penal Law 120.20), please follow the highlighted links. A brief factual/legal Reckless Endangerment case analysis regarding the charges against JetBlue’s Steven Slater can be found on the respective link as well. Additional information on different statutes of the New York Penal Law, legal decisions and cases in the news can be found on Crotty Saland PC’s New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Representing those investigated and accused through the New York City area, the partners at Crotty Saland PC served as prosecutors in the Manhattan District Attorneys office prior to serving their clients as New York criminal defense attorneys.

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