Breaking and Entering, Malicious Destruction of property, and Attempt; All charges dismissed on evidence that client committed offenses out of necessity.

• Steven Topazio wrote this June 12, 2019 at 7:17 pm

The Client, a 29-year-old real estate agent, was arrested and charged with B&E misdemeanor, Malicious Destruction of property -1200, and Attempt to commit a crime, hired Attorney Topazio to represent him.  According to the police report, it was alleged that the client broke through the bedroom window on the third floor of an apartment building located in the North End after attempting to pull the screens out of another window while on a fire escape in the back of the building.  The alleged breaking and entering  occurred while the client was on the fire escape in the back of the building.  Attorney Topazio investigated the facts and learned that the fire escape is not accessible to the ground but runs to two adjoining buildings and is only accessible from within the apartment.  Once in the unit, according to the police report, the client ran out of the building where he was arrested.  The event occurred at approximately 2:30 am on Sunday morning in January.  Attorney Topazio met with the District Attorney assigned to prosecute the case and pointed out that what had happened the night his client was arrested was that his client went out drinking and got trapped on the building’s roof in subzero weather.  The client first was in the West End drinking then ended up in the North End.  The client was initially with friends who left him, yet stayed and continued to drink.  When the restaurant the client was in closed, he went with a couple of individuals he was drinking with to an apartment building in the North End to continue drinking.  When the client entered the building, he wanted to smoke a cigarette, so he went out onto the roof through the head-house to smoke a cigarette.  When he went outside the head-house door unfortunately closed behind him and locked; locking him on the roof.  The day that the client was arrested was very cold, and official weather reports reflected that it was zero degrees.  After the client was locked on the rooftop, he spent several minutes of yelling and banging on the head-house door but no one came to open the door to allow him back inside.  In the client’s panic of being locked on a rooftop and freezing, and out of necessity the client jumped off the roof onto the fire escape below, thinking he could then walk to the ground.  Unfortunately, the fire escape did not have a ladder that went to the ground and the client was trapped again.  Once the client realized that he was now trapped on the fire escape, he broke into the unit out of necessity so as to save himself.  Once the client entered the unit, he ran out of the building where he was arrested. Attorney Topazio pointed out to the Commonwealth that in some situations, necessity may excuse a person’s committing what would otherwise be a criminal offense. The rule of necessity is sometimes called the rule of “competing harms” or “the lesser evil.” It is based on the premise that sometimes, under exceptional circumstances, the values that are normally protected by obedience to the law can be overshadowed by other, more important values.

The rule of necessity exists because it would be unjust and contrary to public policy to impose criminal liability on a person if the harm that results from his breaking the law is significantly less than the harm that would result from his complying with the law in that particular situation. Attorney Topazio pointed out to the court, in defending the Commonwealth’s decision to dismiss all charges, that his client acted with necessity in that he was faced with a clear and imminent danger of freezing on a locked rooftop, that the client reasonably expected that his actions of breaking into an apartment so as to get off the fire escape would be effective in directly reducing or eliminating the danger; and that there was no legal alternative which would have been effective to reduce or eliminate the danger.  The court agreed and all charges were dismissed.