Matter of Stephanie R.
| Decision Date | 31 July 2003 |
| Citation | 766 N.Y.S.2d 313,196 Misc.2d 659 |
| Parties | In the Matter of STEPHANIE R., a Person Alleged to be a Juvenile Delinquent, Respondent. |
| Court | New York Family Court |
Emanuel Saidlower, Jamaica, for respondent.
Michael A. Cardozo, Corporation Counsel, New York City (Chester D. Belatsky of counsel), for presentment agency.
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.
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 verdict convicting him of gang assault in the second degree was based upon legally sufficient evidence (People v Rosario, 293 AD2d 298 [2002]).
While it is theoretically possible to charge gang assault in the first degree as an attempt because Penal Law § 120.07 requires that the perpetrators act with the intent to cause serious physical injury and the statute imposes culpability for the resulting serious physical injury (see, Senate Mem, supra at 2581; People v Gregory, 290 AD2d 810 [2002] []; People v Marquez, 298 AD2d 407, 408 [2002], lv denied 99 NY2d 560 [2002]; People v Garlais, 281 AD2d 431, 432 [2001] []), the asserted crime charged in this petition, attempted gang assault in the second degree, is a legally impossible crime. Penal Law § 120.06 requires that the perpetrators act with intent to cause physical injury but criminal liability is imposed for the resulting serious physical injury to the victim although perpetrators did not act with the intent to cause such serious physical injury (see, Senate Mem, supra at 2581). The imposition of criminal liability for the unintended result of intentional conduct is the very essence of a strict liability crime (Penal Law § 15.10),[1] and there cannot be an attempt to cause an unintended result (People v Campbell, 72 NY2d 602, 604-606 [1988]; People v Coleman, 74 NY2d 381, 385 [1989]; People v Martinez, 81 NY2d 810, 812 [1993]; People v Saunders, 85 NY2d 339, 343-344 [1995]; People v Williams, 291 AD2d 891, 892-893 [2002]).[2]
Accordingly, count one of the petition is...
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In re Cisely G.
...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......
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In Re Cisely G.
...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......