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.

Money, happiness and constitutional rights - Matter of Mark C.H.

But for the occasion of the 17-A proceeding belatedly commenced by petitioner, Mark would, most likely, still be an entirely isolated institutional resident. Although his basic needs were met, he lacked the resources to reach his best potential and to thrive — even as significant monies left to care for him increased, unspent in his trust, from which both trustees presumably took their annual commissions.

The facts in this case dramatically demonstrate why a statute that gives a guardian control over the life of a person with mental retardation and/or developmental disabilities must include provision for periodic court review.

-- Hon. Kristin Booth Glen, Surrogate's Court, New York County in
Matter of Mark C.H.

One of the most challenging issues facing parents of developmentally disabled children is how to provide for their care when the parents are gone. In the Mark C.H. case, an adoptive mother made arrangements for her autistic son's care after her death from cancer, leaving several million dollars in trust for him. Because of what happened after the mother's death, Judge Glen of the New York County Surrogate's Court decided that New York's guardianship law puts an unconstitutional restriction on the liberty of mentally retarded and developmentally disabled people unless the court also monitors the activities of the appointed guardians. In the Matter of Mark C.H., 2010 NY Slip Op 20156 (April 21, 2010).

Marie H. was diagnosed with terminal cancer in 2003. She had two adopted boys. One of them, Mark, was autistic. Because she would no longer be able to care for Mark, she put him in an institution. Mark was 14 at the time. Marie died in 2005, leaving $3 million in trust for Mark's care. Marie's attorney was a trustee of Mark's trust, and he made a death-bed promise to Marie that he would also be Mark's personal guardian.

In 2007, four years after Mark and been institutionalized and two years after Marie had passed away, the attorney filed his belated petition to be appointed Mark's guardian under Article 17-A of New York's Surrogate’s Court Procedure Act (SCPA). Under Article 17-A, New York courts can appoint a guardian of the person and/or property of "mentally retarded persons" and "developmentally disabled" persons. In this case, the attorney was to be appointed as guardian of Mark's person only, since his financial affairs were (supposedly) being handled through the trust.

There was a hearing on the petition in October 2008. Mark had been in the institution for five years. The trustees admitted that they had never visited Mark or taken any steps to find out what Mark's needs were, and they had not spent any of Mark's trust funds on his behalf. At the court's direction, the trustees hired a Care Manager, Robin Hoffman, who visited Mark and his caregivers at the institution. This is what the Care Manager learned:

In her interview with Mark's residence manager, Hoffman was informed that

"as far as [the resident manager] knew, Mark [had] not had any visitors in the five years that she had worked with him nor has he had a vacation. She stated that most of the students leave school over Christmas vacation, [but] Mark remains on campus with staff. She reported that Mark would enjoy eating in a restaurant, playing music on a synthesizer, and using a computer. He could benefit from enhanced augmentative communication devices."

In addition to these items and services that would likely improve Mark's quality of life, Hoffman also learned of significant medical issues that could be alleviated by expenditures from the trust.

Judge Glen decided that there was no way she was going to appoint the petitioner as Mark's guardian without requiring regular judicial review of his actions, even though the guardianship statute doesn't require such review. "The facts in this case dramatically demonstrate why a statute that gives a guardian control over the life of a person with mental retardation and/or developmental disabilities must include provision for periodic court review," Judge Glen said in her decision.

Why does the court have the power to make guardians of developmentally disabled wards report to the court when the statute doesn't require it? Because, Judge Glen decided, the statute would otherwise be unconstitutional. Because guardianship is a drastic restraint on a person's constitutional liberty right, due process is required. The guardianship statute, as written, does not provide for any judicial monitoring once the guardian is appointed, thus leaving the ward open to indefinite restrictions on his or her liberty regardless of what the guardian does or whether the guardianship continues to be in the ward's best interest. The judge reasoned that due process requires that the court read into the statute a reporting and review requirement.

Judge Glen also considered the UN's Disability Convention as a reason for imposing reporting and review requirements, even though it hasn't yet been ratified by the US Senate. "[A]s a matter of international human rights law, state interventions, like guardianships, pursuant to parens patriae power, must be subject to periodic review to prevent the abuses which may otherwise flow from the state's grant of power over a person with disabilities such as those covered by SCPA Article 17-A."

As the court noted, New York law regarding other guardianships, including guardianships of the incapacitated elderly or people with mental illness, requires annual reporting and court review, while guardianships of the persons of those with mental retardation and/or developmental disabilities does not. To add this requirement to the MR/DD personal guardianship is not unrealistic, and provides these wards with the same protections that other people under guardianship receive.

According to the Matter of Mark C.H. decision, in practice many parents of kids with developmental disabilities get Article 17-A guardianships over their kids at the point of adulthood, and then the court never hears from them again. If the New York courts start reading the report and review requirements into the guardianship law, these additional requirements may affect familial guardianships as well as non-familial guardianships like the one involved in this case. Although this would place an additional burden on family members who act as guardians, there's no guarantee that a guardian who is related to the ward will not neglect or abuse him. The story of Tiffany Pinckney, who died under her sister's guardianship, is an example. It seems sensible to afford people under MR/DD guardianships the protection of ongoing court supervision to preserve their constitutional and human rights.