A Manhattan appeals court Tuesday reinstated the indictment against a professional parachute jumper who unsuccessfully attempted to leap from the Empire State Building in April 2006.
However, the jumper, Jeb Corliss, faces less jail time than under the original charge.
While the trial court properly held that a defective grand jury instruction warranted dismissing a first-degree reckless endangerment charge against Corliss, evidence supported a lesser included offense of reckless endangerment in the second degree, a unanimous panel of the Appellate Division, 1st Department, held.
First-degree reckless endangerment is a Class D felony punishable by three to seven years in prison. Second-degree reckless endangerment, the charge Corliss now faces, is a misdemeanor punishable by up to one year in jail.
In dismissing the indictment, the motion court "incorrectly assessed the sufficiency of the evidence" when it considered statements made by the daredevil to the police outside of the grand jury proceedings, Justice David B. Saxe wrote for the panel in People v. Corliss, 5311/06.
Corliss, a 31-year-old professional BASE (building, antenna, span, earth) jumper and former host of Discovery Channel's "Stunt Junkies," wore a prosthetic fat suit and mask to evade recognition as he entered the observation deck on the landmark's 86th floor.
After displaying a jump suit and parachute underneath the disguise, Corliss climbed a security fence and donned a helmet equipped with a camera to record the leap.
But before he could jump, security guards intervened and handcuffed Corliss to the fence. The guards subsequently cut Corliss free from his parachute, after he explained that his arms could be ripped from his body if the parachute inadvertently opened while he was bound to the fence.
Following the arrest, the jumper told police he had planned the stunt for 10 years and studied traffic patterns to assure a safe landing. The grand jury did not hear evidence of those post-arrest statements.
Corliss argued that the indictment should be dismissed because the jump did not constitute reckless endangerment, amounted to constitutionally protected expression and was not banned by state law.
In January 2007, Manhattan Supreme Court Justice Michael R. Ambrecht dismissed the charge.
While Corliss' "conduct was dangerous and ill conceived, [it] does not rise to the level of depraved indifference," he concluded.
Corliss' attention to traffic patterns and his wearing of a parachute were "wholly inconsistent with an 'utter disregard for human life,'" the motion court ruled.
Justice Ambrecht also found "without discussion" that the evidence failed to support the lesser included offense of second-degree reckless endangerment, the panel wrote.
The trial court properly ruled that a defective grand jury charge led the grand jurors to "erroneously" interpret the required mental state for a conviction of first-degree reckless endangerment, Justice Saxe wrote.
The assistant district attorney, he observed, cited an overruled case when instructing the grand jury and failed to inform it of the current reckless endangerment standard, articulated in People v. Feingold, 7 NY3d 288 (2006). That created the risk that the jurors could vote the first-degree charge without finding that Mr. Corliss acted in "utter disregard for the value of human life," Saxe wrote.
But "this error ... has no impact on the lesser included offense of second-degree reckless endangerment, which does not entail the mental state of depraved indifference," the panel held.
Saxe concluded that the grand jury's findings "encompassed the determination" that Corliss committed reckless endangerment in the second degree by "engag[ing] in conduct which created a substantial risk of serious physical injury to another person."
While the panel declined to opine whether the evidence could have supported a first-degree reckless endangerment charge, Justice Saxe agreed with the prosecution that the evidence was "sufficient to sustain" the second-degree charge.
He dismissed Corliss' contention that his conduct fell outside the reckless endangerment statute.
The judge also rejected the trial court's finding that the physical restraint of Corliss by security guards made potential harm to pedestrians "physically impossible." If strong winds had flung the jumper into the air, and his parachute had malfunctioned, Corliss could have killed himself and onlookers, the panel found.
Justices Peter Tom, David Friedman and John T. Buckley joined the ruling. The panel heard arguments in the case on Jan. 8.
A $12 million civil suit brought by the Empire State Building's owners is pending against Corliss for injuring a security guard and damaging the landmark's reputation and its revenue stream. Last month, Corliss filed a $30 million counterclaim, alleging unlawful imprisonment, defamation of character, emotional distress and loss of income.
Corliss has jumped from sites as far-flung as Paris' Eiffel Tower, Seattle's Space Needle and the Petronas Twin Towers in Kuala Lumpur, Malaysia.
Assistant District Attorneys Eric Rosen and Sheryl Feldman handled the appeal for the Manhattan district attorney's office. Barbara Thompson, an office spokeswoman, declined to comment.
Peter Toumbekis and Mark Jay Heller of Heller & Heller, represented Corliss.
Heller said Tuesday that he disagreed with the appeals court for attempting to "legislate" by imposing restrictions against the "creative" pursuit of "free-form flying." His client is likely to appeal, he said.
He added that earlier this week city Councilman Peter Vallone Jr., D-Queens, introduced a bill that would impose up to one year in jail and a fine of $1,000 on individuals attempting to climb on and jump from structures higher than 25 feet.