Defendant, Jebb Corliss, charged by indictment with Reckless Endangerment in the First Degree (PL §120.25) moves to dismiss the indictment, pursuant to CPL §210.20 on the following grounds: 1) the indictment is defective pursuant to CPL §200.50 (7) because it is insufficiently particularized; 2) the evidence presented to the Grand Jury was legally insufficient to establish recklessness; 3) the charge is "legally inappropriate and insufficient" and 4) defendant's alleged conduct is constitutionally protected freedom of expression.

Background

Defendant is a professional BASE (Bridge, Antenna, Span, Earth) jumper and former host of "Stunt Junkies" a television program on the Discovery Channel. In a statement made to police following his arrest defendant claims to have previously parachute jumped from numerous tall structures including the Eiffel Tower and the Petronas Towers in Malaysia, presumably without physical injury to himself or others.

It is alleged that on April 27, 2006, defendant entered the Empire State Building wearing a prosthetic fat suit and mask to disguise his appearance. He proceeded to the 86th floor observation deck, removed his fat suit, revealing a parachute underneath, and donned a helmet with a camera mounted to it. Defendant then scaled a security fence and climbed onto the ledge of the building in an attempt to document a BASE jump from the landmark building.

The building security guards, who had been alerted of a possible jumper by an anonymous source, attempted to apprehend defendant. The defendant initially resisted but, after a brief struggle, was handcuffed to a rail on the ledge. The security guards were located on the inside of the fence and defendant was located on the outside of the fence, rendered unable to jump. After informing the security guards that by tethering him to the building his life was endangered, as his parachute could open tearing his arms from his body, the guards cut the parachute free.

Shortly thereafter defendant was removed from the building, arrested and charged with Reckless Endangerment in the First Degree. Following his arrest defendant made several statements, memorialized in the People's voluntary disclosure form, indicating, inter alia, that the attempted jump was the culmination of a long term dream which he had carefully planned [*2]over a ten year period. In addition, defendant told police that he never meant to harm anyone, had studied the traffic patterns of the avenue below and timed his jump so he would land when the traffic lights on the avenue below were red and the avenue clear. Defendant, who did not testify before the grand jury, was indicted for Reckless Endangerment in the First Degree on or about October 5, 2007.Discussion

Sufficiency of the Indictment

As set forth in CPL § 200.50(7) an indictment must include [a] plain and concise

factual statement without allegations of an evidentiary nature asserting facts supporting every element of the offense charged with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the accusation." Generally, " the indictment need only allege where, when and what defendant did" (People v Morris, 61 NY2d 290, 293 [1984]).

In this case the indictment states the offense with which the defendant is accused as well as the following narrative: "The defendant, in the County of New York, on or about April 27, 2006, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person." The indictment does not specify the actual conduct defendant is alleged to have engaged in, or even that it occurred at the Empire State Building, but merely parrots the language of the Penal Law in describing the offense.The lack of factual allegations however, is not necessarily fatal to an indictment as the the bill of particulars may be used to supplement the indictment (People v Sanchez, 84 NY2d 440, 445 [1994]; People v Jackson; 46 NY2d 721 [1978] ). Indeed, even where the bill of particulars is lacking in particularity the Court can ensure fair notice of the nature of the charges and the manner in which they were allegedly committed by ordering the People to provide a more detailed bill of particulars (People v Iannone, 45 NY2d 589 [1978]). Applying these principles to the indictment at issue the Court finds that on its face the indictment is indeed insufficient as it merely provides the date, county and conclusory allegations. However, when read in conjunction with the Bill of Particulars which specifies that the incident occurred at the Empire State building as well as the remainder of the VDF, the court concludes that defendant has been sufficiently notified of the specifics of the single charge against him. Indeed, defendant's own motion clearly supports a finding that defendant is well aware that he is charged with attempting to jump off the Empire State Building and thereby endangering others. Accordingly, the motion is denied on this ground.

Reckless Endangerment in the First Degree

The Court now turns its attention to the question of whether the evidence put before the grand jury was legally sufficient to establish the offense charged pursuant to CPL §210.20[1][b]). To warrant dismissal the defendant bears the burden of making a clear showing that all the evidence presented to the grand jury is legally insufficient to support the charges (People v Guzman, 180 AD2d 469 [1st Dept 1992]; People v Heber, 192 Misc 2d 412 (NY County Ct 2002]). The Court must view the evidence in the light most favorable to the People (People v Lambert Co, 51 NY2d 295, 299 [1980]).

Reckless Endangerment in the First Degree as codified in PL §120.25 requires that a person, [*3]under circumstances evincing a depraved indifference to human life, recklessly engage in conduct which creates a grave risk of death to another person. For purposes of this statute, a person acts recklessly:

"when he or she is aware of and consciously disregards a substantial and unjustifiable risk that such result [grave risk of death] will occur and that such risk must be of such nature and degree that disregarding that risk is a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (PL §15.05[3]).

Although an individual may be convicted of Reckless Endangerment in the First Degree after causing actual harm to another, actual harm is not necessary (People v Feingold, 7 NY3d 288). It is sufficient if defendant's conduct alone creates a grave risk without any actual harm to another (People v Feingold, supra).

After a number of shifts in the jurisprudence, the Court of Appeals has finally pronounced that depraved indifference is a culpable mental state which indicates a "willingness to act not because one intends to harm, but because one simply doesn't care whether harm results or not an utter disregard for human life" (People v Feingold, 7 NY3d 288 quoting People v Suarez 6 NY3d 202). In Feingold, the Court reduced defendant's conviction of Reckless Endangerment in the First Degree to Reckless Endangerment in the Second Degree where defendant, in an attempt to commit suicide, sealed his apartment door with tape, turned on the gas on his stove, ingested sleeping pills and fell asleep in front of the oven. Thereafter a spark ignited the gas causing an explosion which heavily damaged a number of neighboring apartments. Neither defendant nor any of his neighbors was seriously injured.

The trial court, finding that defendant was motivated by his own self interest in committing suicide, and therefore did not possess the mens rea of depraved indifference nonetheless applied the then prevailing standard of People v Register, 60 NY2d 270 [1983]) which held that "depraved indifference" was not a culpable mental state per se but rather could be demonstrated by "objective circumstances surrounding a defendant's conduct." Applying this standard the court, in a bench trial, found defendant guilty. The Court of Appeals modified the verdict and overruled People v Register finding that in light of the trial courts specific finding of no mens rea the conviction could not stand.

The Court however, was careful to explain that like any other mens rea, depraved indifference could still be proved by circumstantial evidence in appropriate circumstances. To illustrate the degree of culpability now required to sustain a finding of depraved indifference the Court invoked as "a quintessential case of depraved indifference" the hypothetical example of an individual who boards an empty train car and, with the intent to commit suicide, derails the train killing passengers in other cars.

Other examples, even pre Feingold, illustrative of the type of conduct exemplifying first degree reckless endangerment include, People v Minaya, (6 AD3d 728 [2d Dept 2004]) where defendant drove his car into the middle of a melee; People v Heber, (192 Misc 2d 412 [Sup Ct, Kings County 2002) where defendant left a loaded semi-automatic pistol under a cushion in his living room, where his four year old nephew found it and fatally shot himself and People v Rodriguez (217 AD2d 403 [1st Dept 1995]) where defendant drove an unregistered and uninsured car at speeds of 80 to 100 miles per hour through 10 red lights, smashing into two other vehicles.

Conclusion [*4]

Applying the standard now enunciated in Feingold, supra and the above illustrations

the Court concludes that this defendant's conduct, while dangerous and ill conceived, does not rise to the level of depraved indifference and thus the indictment must be dismissed. At the outset the Court notes that while defendant's attempted jump pre-dated Feingold, which was decided in July 2006, the grand jury presentation occurred post Feingold in September 2006, Feingold was controlling (see, e.g., Policano v Herbert, 2006 WL 3313126 [ in context of a post conviction motion law defining depraved indifference existing at time of conviction [indictment] not time of motion is controlling]). An in camera inspection of the grand jury minutes however, reveals that in this case, the assigned assistant charged the "objective circumstances" definition of depraved indifference and specifically informed the grand jurors that the charge was derived from People v Register, supra since the Penal Law did not define the term. As such the grand jurors were erroneously charged with a lower threshold of culpability than required by Feingold.

In any event, under either standard, the Court finds that defendant's conduct when measured against the aforementioned examples simply does not rise to the level of depraved indifference as it does not suggest moral depravity or wickedness. In fact, the circumstances surrounding this admittedly dangerous stunt suggest that rather than indifference to the risk of harm to others, defendant took affirmative steps to ensure the safety of others. This is evinced by the fact that defendant, an experienced BASE jumper, attempted this stunt while wearing a parachute and after studying the traffic light patterns of the avenue below to maximize chances of landing when traffic was stopped. Such actions are wholly inconsistent with an "utter disregard for human life" and indicate that he appreciated the inherent risk of his conduct and took steps to mitigate such risk. However outrageous this stunt was the evidence before the grand jury demonstrates that defendant took steps to avert risk to others" (see, People v Reagan, 94 NY2d 804 [1999]).

With respect to the degree of risk created by defendant's conduct, the People have identified various groups of people who were potentially at risk by defendant's conduct. These include the Empire State Building security guards, civilians on the observation deck, pedestrians on the street below the building and motorists driving below. While certainly injury to any of these individuals was a possibility, the evidence failed to establish a grave risk of death to anyone.

Both the pedestrians and motorists faced the same risk, namely that defendant would fall on them at some high speed, causing death or a vehicular accident. However, as discussed above defendant's training, planning and use of a parachute negated this outcome as defendant clearly intended to glide safely to the ground below. The security guards at the Empire State building who tried to detain defendant were also within the scope of any risk created by defendant. They were successful in apprehending him and preventing him from jumping off of the building. They were all able to do so without having to scale the security fence on the 86th floor of the building and were at no time in danger of falling from the building. The success of the security guards in preventing the jump and restraining defendant made it physically impossible for defendant to put the people below at a grave risk of death. Even assuming, arguendo, that defendants conduct would normally constitute reckless endangerment, where the conduct becomes impossible to complete, the risk essential to the commission of the crime is eliminated (People v Davis, 72 NY2d 32 [1988]).

Depraved indifference is "embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to [*5]render the actor as culpable as one whose conscious objective is to kill" (People v Suarez, 6 NY3d 202, 214 [2005]). Before this court is a professional BASE jumper, attempting to jump off of the Empire State building with appropriate safety equipment. To hold that defendant's conduct rises to this level of blameworthiness is manifestly unjust and contrary to prevailing law.

Accordingly, the motion is granted, with prejudice, pursuant to CPL §210.20(1)[b] and §210.20 (4). In addition the Court finds that the testimony presented does not support reducing the charge to a lesser included offense as contemplated by CPL §210.20(1-a).

This constitutes the Decision and Order of the Court.

January 17, 2007

_________________

Michael R. Ambrecht

J.S.C.