James Whittemore Fails to Make Letterman’s Top Ten After Allegedly Trashing Ed Sullivan Theater: Criminal Charges & Potential Punishment

James Whittemore, the twenty-something Manhattan man arrested for an alleged drunken rampage at the fabled Ed Sullivan Theatre in New York City, is going to a get a sobering reality check when he sees a criminal court judge for the first time. It is alleged by police that Mr. Whittemore trashed the Ed Sullivan Theatre be smashing out windows and tossing garbage pails and other items around David Lettermen’s home stage. While not as disturbing as the crimes perpetrated by Robert Halderman, the actions of Whittemore certainly have left the gapped toothed comedian unhappy to say the least.

Assuming the reports are true, what are the potential crimes that young James may face? As I note in most of my blog entries, I am only privy to the facts set forth in the media, but the following are some of the more serious criminal offenses I believe may be charged based on the limited information that I have:

Burglary in the Third Degree: New York Penal Law 140.20 In short, if you trespass and do so with the intent to commit a crime in the location you are trespassing, then you have committed the crime of New York Burglary in the Third Degree. Despite what we read or see in the news, you need not intend to steal when you commit a Burglary. As long as you enter, for example, a building without permission or authority and you do so with the intent to commit any crime (the prosecution need not prove a specific crime), then a Burglary has been committed. If that building also houses units or areas where people sleep at night such as an apartment, then the offense level increases to a violent felony under the law of Burglary in the Second Degree (New York Penal Law 140.25). A “D” felony, Burglary in the Third Degree is punishable by up to even years in state prison with no mandatory minimum for a first time offender. In the event the building had apartments, for example, then there is a possibility that the Second Degree offense could be charged. A “C” felony, Burglary in the Second Degree is punishable by a mandatory minimum of three and one half years in state prison and a maximum of fifteen years.

Here, it appears that Whittemore did not have permission or authority to enter the Ed Sullivan Theater. After all, it is clear one is trespassing when one forces one’s way into a locked building where one does not work. Assuming this is what the evidence will establish, Whittemore trespassed when he allegedly “crashed the gates.”

Once inside, the argument is going to be made that he then smashed the place up thereby perpetrating the offense of Criminal Mischief. Now, as I noted above, the prosecution need not specifically allege or prove that Whittemore intended to cause damage to property in the building. Whether Whittemore decided to damage the building, steal or burn it down is relatively irrelevant as long a Manhattan Assistant District Attorney in Cyrus Vance’s brigade can establish he intended to commit any crime.

Criminal Mischief in the Third Degree: New York Penal Law 145.05 Generally speaking, if you intentionally damage the property of another person, you are guilty of some degree of New York Criminal Mischief. Whether the property is an antique radio, clothing or the glass doors to the Ed Sullivan Theatre makes no difference. The relevant factor in ascertaining the degree of the crime is the amount of the damage. In the event that damage exceeds $250, but is equal to or less than $5,000, then the crime is a violation of New York Penal Law 145.05. An “E” felony, Criminal Mischief in the Third Degree is punishable with no mandatory minimum for a first time offender, but up to four years in state prison.

Examing the case against Whittemore, it is likely that if true, the damage caused was greater than $250, but not greater than $5,000. Therefore, this felony version of Criminal Mischief will be charged.

Potential Defenses to the Allegations It is awfully difficult to formulate a defense without knowing the evidence and “facts” beyond a few articles in the tabloids. While Whittemore could certainly argue (although it might be difficult) that he had no criminal intent when he trespassed into the Ed Sullivan Theatre (maybe he merely wanted to see memerobelia in his drunken state whe he entered the building), that would still leave him with the felony Criminal Mischief that was likely caught on video. Alternatively, a mitigation approach might be much better. In other words, Whittemore is a good guy who made a bad mistake. But for the premises being the Ed Sullivan Theater and the incident playing out in the news, the Manhattan District Attorney’s Office should not treat this case any differently than any other case. Does this young man have any mental health or substance abuse issues? Is he remorseful and willing to take financial responsibility for what he did? Has he shown that but for this incident, he has been and can continue to be a valued member of society? These are many of the questions that must be addressed if and when he and his criminal lawyer attempt to mitigate his conduct. Whatever the defense may be, Whittemore likely has a long road ahead of him.

Extensive information on the crimes of Burglary and Criminal Mischief is located through the links above. Additional information on these and other crimes as well as analysis of cases in the news can be found on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) as well as the Saland Law PC website.

Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Saland Law PC represent those investigated for and accused of crimes throughout the New York City region.

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