While being selfish is not criminal, is potentially exposing others to the coronavirus, knowing that you may be infected with COVID-19, a violation of the New York Penal Law? What if you were concerned enough to be tested for the coronavirus and were awaiting the results? What if before you confirmed one way or another whether you were sick and infected, you boarded a JetBlue flight from New York’s JFK Airport to West Palm Beach, Florida? What if that plane carried 114 passengers and crew? What if there were countless news reports about voluntary quarantines, the concerns over air travel, how the disease spreads, and, most importantly, the potential for illness or even death? Sadly, this is not a “what if” hypothetical. The real questions should be whether this passenger committed a crime, and more specifically, Reckless Endangerment in the Second Degree pursuant to New York Penal Law 120.20.
Briefly, and before addressing whether this infected JetBlue passenger’s actions were criminal, lets momentarily pivot. Courts have found that attempting to BASE jump off a Manhattan building, even if restrained before leaping from its summit, violates Penal Law 120.20. Just ask Jeb Corliss, the man a Manhattan jury convicted for trying, unsuccessfully, to parachute off Gotham’s Empire State Building. According to the Appellate Division, First Department:
“We reject the [lower] court’s conclusion that the very success of the security guards in restraining defendant made it physically impossible for defendant to have put the people below at risk. Even defendant’s aborted efforts were enough. 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-perhour 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.”
In light of the reasoning above, can one conclude that a passenger who is awaiting confirmation whether he is infected with the coronavirus, but nonetheless boards an airplane where he would be in close proximity to many people and confined in a tank of recycled air with wings, be guilty of Second Degree Reckless Endangerment?
The Crime of Reckless Endangerment
You are guilty of Penal Law 120.20 when you recklessly engage in conduct which creates a substantial risk of serious physical injury to another person. Breaking this down further, the law mandates that prosecutors prove beyond a reasonable doubt that you were aware of and consciously disregarded the danger that your conduct created a substantial and unjustifiable risk of serious physical injury to another person and that risk is of such nature and degree that disregarding it constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Not just any injury, the substantial risk must be of the nature that would result in the impairment of a person’s physical condition which creates a substantial risk of death, or which causes death, or serious and protracted disfigurement, or protracted impairment of health or protracted loss or impairment of the function of any bodily organ. It is critically important to recognize that this injury need not occur.
Potential Facts and Allegations
According to media reports, the sick man’s wife told another passenger that her husband had not been feeling well. Further, she allegedly indicated that she had received a call before taking off confirming her husband’s positive diagnosis for COVID-19. Other reports reflect he learned of his coronavirus diagnosis while on the flight. Simply, if true, this now-diagnosed passenger knew or should have known he could be infected with the virus. Setting aside his actions and potentially exposing over 100 people, what was the danger to fellow passengers? According to the CDC and other healthcare professionals, there is a risk of death to elderly and those who may have chronic medical conditions such as lung disease, diabetes, and heart disease. Further, there are some reports of long-term health problems including scarring of the lungs and other medical issues.
Guilty or Not Guilty, that is the Question
It matters not whether anyone ultimately is sickened. For that matter, even if someone on the flight is ultimately diagnosed with coronavirus, proving it was a result of this fellow passenger’s apparent indifference would be next to impossible. But again, prosecutors would not be required to prove that anyone actually suffered a serious physical injury or died. The real question would be knowing that he was a potential carrier, did this passenger understand that there was a substantial risk that he could have infected others with an illness that could have caused a protracted health issue or death? Further, did he nonetheless disregarded this substantial risk and was doing so a gross deviation of behavior from how a reasonable person would have acted?
Ultimately, I do not know all the facts and potential evidence. Nor can I assert as a non-medical professional that even if the above could be proven beyond a reasonable doubt, were other passengers exposed to a legally defined serious physical injury? While this alleged conduct may not be exactly akin to having sexual intercourse with another person while knowingly having a venereal disease in violation of NYS Public Health Law 2307, if charged with Second Degree Reckless Endangerment, he would also face misdemeanor prosecution and up to one year in jail.
More important than whether there is an arrest and prosecution, there is little doubt that many people are dealing with tremendous anxiety and collateral fallout due to a fellow passenger’s alleged and apparently selfish, ugly and reprehensible actions. Hopefully, that is all they encounter in the days ahead.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors.