NY One World Trade Center Base Jumpers to Face Felony Burglary Arrest: A Misuse of NY PL 140.20?

Authoring children’s stories is best left to those with an abundance of creativity. While not the sole career of the imaginative thinker, other fruitful and rewarding opportunities often present themselves (landscape architect would be neat and for the younger set, video game designer). One of those paths in life, however, is not prosecuting crime. Certainly, it helps to think out of the box, but when one gets overly creative in law enforcement (not necessarily the means to catch offenders, but what crimes to charge), for better or worse someone is gonna’ get hurt. The concern is not that being creative in charging crimes is always a bad thing (it is not), but individuals can be “over prosecuted” or prosecuted inconsistently with the intention of a particular statute. If what I have read is correct, base jumpers (not skydivers) James Brady, Marko Markovich, Andrew Rossig and alleged lookout man, Kyle Hartwell, may come to personify this legal exuberance.

According to reports, Brady, Markovich, Rossig and Hartwell (I assume Hartwell will be charged as an accomplice or accessory if he is to be charged) are going to turn themselves in to the New York Police Department and be prosecuted by the Manhattan District Attorney’s Office for Burglary in the Third Degree, pursuant to New York Penal Law 140.20. A person is guilty of Burglary in the Third Degree when he or she he knowingly enters or remains unlawfully in a building with intent to commit a crime. This felony carries a potential punishment and sentence of up to seven years in prison.

What crime did the defendants intend to commit, you ask, when they unlawfully climbed and entered One World Trade Center? Well, that is a darn good question. Although the law does not require that the crime be specified, it is safe to say it certainly was not to steal or damage property. This is not a scenario where a drug dealer enters a building unlawfully and without permission to sell drugs or a thief returns to a store that he is advised not to return and does so to steal again. In those cases, Burglary could likely be appropriate. Here, the “intent” was to jump off a building. While there is no New York State Penal Law statute that makes jumping from a building a crime there is a New York City Administrative Code misdemeanor.

In this particular circumstance, overzealously charging Burglary where it may not be warranted is likely meant to send a message after 16-year-old Justin Casquejo’s fiasco. Simply, one should not access buildings without permission (or jump off them). I can appreciate law enforcement’s concern, although, more stress should be placed on the lapse of security (that is another story). From a practical stand point, this charge is also a means for the District Attorney’s Office to flex its muscle to “force” a lesser plea by the accused. That is, prosecutors can scare the defendants by asserting that if the defendants do not accept a lesser plea (likely the more appropriate top charge), they could face a felony conviction and prison.

Let’s be very clear. We should all respect the need for law enforcement to protect the public and, as noted above, to think out of the box when necessary. Law enforcement must do so in the face of ever changing crimes. In this particular case, if the New York County District Attorney’s Office’s goal is to prosecute these base jumpers for their potentially dangerous conduct (many people would agree they should while others would not), the answer is not charging the defendants with a crime (Burglary) that is likely inconsistent with the purpose, design and goal of the statute when it was drafted by the legislature. If the State of New York deemed such conduct felonious, a statute would be enacted to reflect that. However, such a crime does not exist and instead of “making up” offenses to charge these men with, time and energy should be placed into lobbying the legislature in Albany to create a new felony offense for jumping off buildings.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Jeremy Saland, one of the New York criminal lawyers and a member of the firm, enjoys canyoneering and rappelling into Utah’s remote canyons, but thinks base jumping (off buildings or not) is a tad bit over the top for an average Joe thrill seeker.

Posted in:
Contact Information