What was he thinking? - People v. McCollum 1992 and 2010

At the age of 15 he had his own uniform,
Every line of track was burned into his mind,
And the tire track crews are smiling to see
Darius McCollum coming down the line.

-- Alexis Harte, "Ballad of Darius McCollum"

The legendary Darius McCollum was arrested again last week - reportedly for the 27th time - for a transit-related offense. He allegedly took a Trailways bus from a maintenance garage in Hoboken, NJ, and he was apprehended in Queens while driving it. The story of McCollum's latest arrest was immediately picked up by the Associated Press and was reported in the New York Times and the Wall Street Journal.

According to news stories, McCollum has Asperger's Syndrome and a life-long intense special interest in mass transit. He has been prosecuted for transit-related crimes and has spent some years in prison, but apparently it has not deterred him from doing what he loves most - driving transit vehicles, with or without permission, and returning them in good condition to their owners if he isn't stopped first.

By all accounts, Darius McCollum is a likeable, honest, intelligent man. In a 2002 article in Harper's Magazine, "The boy who loved transit: how the system failed an obsession," Jeff Tietz wrote:

It is difficult to find anyone who knows Darius well and does not express an abiding protective affection for him. Cops always refer to him by his first name, and often with wistful amusement, as if he were a wayward godson. In discussing his cases, they have called him "great," "endearing," and "fabulous." They mention his honesty and abnormally good memory. Sergeant Jack Cassidy, a high-ranking transit cop who has interviewed Darius more often than anyone else in the NYPD, told me, "You'll be talking to a fantastic person when you talk to Darius, and I hope prison never changes that."

Though some reporters have expressed surprise that McCollum was driving a bus instead of a subway train last week, this is not his first case involving buses. Twenty years ago, the New York Times reported that McCollum was arrested driving a New York Transit Authority bus. That 1990 incident resulted in a reported appellate case, People v. McCollum, 183 A.D.2d 413, 583 N.Y.S.2d 269 (1992).

In the 1992 case, McCollum was accused of taking two city buses in one day. Allegedly he took the first from a Manhattan terminal and left it off at another depot in Queens, where he took a second bus and drove it back to Manhattan. He was arrested driving the second bus in Manhattan.

The interesting thing about the 1992 case is that McCollum was charged with burglary, an intent crime. The Grand Jury indicted him for that, but the court dismissed the indictment. The State of New York appealed and lost. In its decision, the Appellate Division of the New York Supreme Court explained that the crime of burglary requires that the defendant enter a building with the intent to commit a crime therein. Becauses the buses were not buldings, and because there was no evidence that McCollum intended to commit a crime in the buses, there was no basis for indicting him for burglary. On the intent element, the court said:

We also find that the unexplained and uncontradicted evidence of defendant's conduct presented to the Grand Jury, viewed in the light most favorable to the People, provided no basis to infer that defendant's intent was to commit a crime inside the buses (Penal Law § 140.20), and would not warrant a conviction for burglary by a petit jury (see, People v Jennings, 69 N.Y.2d 103). Defendant's intent is not apparent from the circumstances of his entry into the buses (compare, People v Henderson, 41 N.Y.2d 233, with People v Gilligan, 42 N.Y.2d 969) or his use of the buses. While the evidence was sufficient to show that defendant took the buses without authorization, and while intent must be established by proof of conduct and the surrounding circumstances (People v Mackey, 49 N.Y.2d 274, 279), there were no passengers on the buses when defendant entered them, he did not damage them and he simply abandoned the first at a transit authority lot and was doing no more than driving the second when his jaunt was interrupted by the police.

In the present case, McCollum isn't being charged with burglary, or even with larceny (at least in New York). According to New York court records, the charges are:

• Criminal Possession of Stolen Property in the Second Degree
  (PL 165.52 00), a Class C Felony based on stolen property having a value exceeding $50,000.00;


• Criminal Possession of Stolen Property in the Fourth Degree
  (PL 165.45 05), a Class E Felony based on a stolen motor vehicle;


• Unauthorized Use of Vehicle without Owner's Consent
  (PL 165.05 01), a Class A Misdemeanor; and


• Operation of a motor vehicle by an unlicensed driver
  (VTL 509.1 01), an Infraction.

The top charge of Second Degree Possession of Stolen Property carries a maximum sentence of 15 years. (PL 70.00 2(c)), with possible enhancements to the minimum sentence because of prior felonies as to which McCollum pled guilty.

There is an intent element in the current felony charges of possession of stolen property, both crimes requiring that the defendant "knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof."

In addition to the specific intent of these crimes, there's the threshold question of what "stolen property" means. As far as I can tell, "stolen property" is not statutorily defined in New York, but the crime of stealing is "larceny." Under New York law, "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." (PL 155.05 1.) Depriving another of property, or appropriating property, are defined as being permanent, or virtually permanent. (NY PL 155.00 3 and 4.) Temporary use of another's property is not stealing.

It all comes down to what McCollum was thinking when he took the bus. Just as there was no evidence that he intended to commit crimes in the buses he allegedly took in 1990, I think it's very likely that there's no evidence that he intended to deprive Trailways of its property, or appropriate the Trailways bus to himself, as defined in New York law. If that turns out to be the case, and he didn't steal the bus, then I'd say that he wasn't knowingly in possession of stolen property, either.

I don't think that McCollum ever operated a bus or a train, or attempted to do so, with larcenous intent - not because he is legally insane or has diminished capacity due to his autism, but because he didn't intend to take them from their owners permanently. That McCollum has an autism spectrum disorder might be a factor in explaining why he is so fixated on transit vehicles and would intend to drive them temporarily and then return them, behavior that Lawrence Osborne in his book American Normal: The hidden world of Asperger Syndrome described as "egregiously bizarre." But this isn't the same thing as saying that he shouldn't be held responsible for stealing, or possessing stolen property, because he has Asperger's.

Of course, it is still illegal to use a vehicle without the owner's consent. But this is a misdemeanor, punishable by up to one year in jail. That should be the charge. He should not be facing up to 15 years in prison for a Class C felony.

I don't know what to say about how Darius McCollum can stop himself from the unauthorized driving of transit vehicles, or how an opportunty could be created for him to work in the transit industry. His story, however legendary and despite it's amusing aspects, is essentially a sad one. His attorney, Stephen Jackson, is quoted as saying that he is going to concentrate on getting McCollum help for his Asperger's. However they approach that goal, I hope that McCollum won't be pleading guilty to a felony again.