Matter of Stephanie R.

CourtNew York Family Court
Citation766 N.Y.S.2d 313,196 Misc.2d 659
Decision Date31 July 2003
PartiesIn the Matter of STEPHANIE R., a Person Alleged to be a Juvenile Delinquent, Respondent.

196 Misc.2d 659
766 N.Y.S.2d 313

In the Matter of STEPHANIE R., a Person Alleged to be a Juvenile Delinquent, Respondent.

July 31, 2003.


Emanuel Saidlower, Jamaica, for respondent.

Michael A. Cardozo, Corporation Counsel, New York City (Chester D. Belatsky of counsel), for presentment agency.

OPINION OF THE COURT

JOHN M. HUNT, J.

By petition filed on June 6, 2003, respondent is alleged to have committed acts which, were she an adult, would constitute the crimes of attempted gang assault in the second degree, assault in the third degree, and attempted assault in the third degree.

[196 Misc.2d 660]

Respondent has moved, inter alia, for an order dismissing count one of the petition as a "non-existent crime" pursuant to Family Court Act § 315.1 (1).

Respondent's motion is decided as follows.

Count one of the petition charges respondent with committing acts which would constitute the crime of attempted gang assault in the second degree under Penal Law §§ 110.00 and 120.06. The petition alleges that respondent "in the County of Queens on or about May 13, 2003, with intent to cause physical injury to another person and aided by two or more persons actually present, attempted to cause physical injury to Sarah Valdiz."

Penal Law § 120.06 provides that a person is guilty of the crime of gang assault in the second degree when: "with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or a third person." Both gang assault in the first degree (Penal Law § 120.07) and gang assault in the second degree contain the common element of the commission of an assault upon another person "with the aid of others" (Senate Mem in Support, 1996 McKinney's Session Laws of NY, at 2581, 2582), although the mens rea required for each of the crimes is different (id. at 2581). The first degree crime is committed when a person aided by at least two others actually present and with intent to cause serious physical injury does cause serious physical injury to the victim, and "[t]he second degree crime is committed when a person, with intent to cause physical injury to [another] and when aided by two or more other persons actually present, causes serious physical injury to such person or a third person" (id. at 2581-2582). Thus, for example, where defendant was part of a group "that jointly confronted, attacked, and caused serious physical injury to the victim," the...

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2 practice notes
  • In re Cisely G.
    • United States
    • New York Supreme Court Appellate Division
    • February 17, 2011
    ...defective. Moreover, attempted gang assault in the second degree is a legal impossibility for trial purposes ( Matter of Stephanie R., 196 Misc.2d 659, 766 N.Y.S.2d 313 [Family Ct., Queens County 2003] ), as "there can be no attempt to commit a crime which makes the causing of a certain res......
  • In Re Cisely G., 4272
    • United States
    • New York Supreme Court Appellate Division
    • February 17, 2011
    ...defective. Moreover, attempted gang assault in the second degree is a legal impossibility for trial purposes (Matter of Stephanie R., 196 Misc 2d 659 [Family Ct, Queens County 2003]), as "there can be no attempt to commit a crime which makes the causing of a certain result criminal even tho......
2 cases
  • In re Cisely G.
    • United States
    • New York Supreme Court Appellate Division
    • February 17, 2011
    ...defective. Moreover, attempted gang assault in the second degree is a legal impossibility for trial purposes ( Matter of Stephanie R., 196 Misc.2d 659, 766 N.Y.S.2d 313 [Family Ct., Queens County 2003] ), as "there can be no attempt to commit a crime which makes the causing of a certain res......
  • In Re Cisely G., 4272
    • United States
    • New York Supreme Court Appellate Division
    • February 17, 2011
    ...defective. Moreover, attempted gang assault in the second degree is a legal impossibility for trial purposes (Matter of Stephanie R., 196 Misc 2d 659 [Family Ct, Queens County 2003]), as "there can be no attempt to commit a crime which makes the causing of a certain result criminal even tho......

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