People v. Sanchez

OPINION OF THE COURT

These appeals involve New York’s “gang assault” statutes, which apply when a person, who intends to cause “physical injury” to another, causes that person or a third person “serious physical injury” and is “aided by two or more other persons actually present” (Penal Law §§ 120.06, 120.07). At issue in these cases is whether the two or more persons who provide aid must also share the criminal intent of the defendant. We find that the statutes’ language and history establish that they do not.

People v Sanchez

On New Year’s Eve 2004, at a bar on Second Avenue in Manhattan, the owner, Liam McCormack, announced “last call” and turned up the lights to encourage the patrons to leave. Shortly before that time, Herb Griffin, a police detective and a friend of McCormack’s, had arrived.

McCormack placed his keys in the door and, as patrons left, unlocked and then relocked the door. Defendant, along with codefendants Anthony Amitrano and Nenad Jurlina, left the bar. McCormack would not let defendant leave with a drink and, after some resistance, defendant handed his drink to him. Shortly thereafter, McCormack noticed that his keys were gone from the door. A man outside observed defendants take the keys and told McCormack what had happened. McCormack ran after them. Griffin went to help McCormack, who was about a block and a half ahead.

*559When McCormack caught up to the men, an altercation ensued. According to McCormack, he asked for his keys back and defendant threw them at his face. In response, McCormack punched defendant in the mouth.

Griffin finally caught up. He saw that McCormack had his keys, and said they should get out of there. As they walked away, a bottle was thrown from behind McCormack and Griffin and broke next to them. They turned around, and defendants came towards them.

Amitrano went towards McCormack, while defendant and Jurlina approached Griffin. Defendant punched Griffin in the face. Griffin dropped to the ground and tried to protect himself but was then beaten, punched and kicked by defendant and at least one other. McCormack was also attacked by at least two of the men.

The police arrived at the scene. Defendant and Jurlina were immediately arrested. Amitrano was told to go home, but was eventually arrested. Both McCormack and Griffin were injured; Griffin the more seriously, suffering fractures to the skull and face.

Defendant and his codefendants admitted that they were involved in the altercation, but claimed they were innocent victims of unprovoked violence by McCormack and Griffin. Two witnesses who observed the fight, however, testified that McCormack and Griffin tried to get away and neither of them fought back.

Defendants were indicted for gang assault in the first degree (Penal Law § 120.07) and attempted gang assault in the first degree (Penal Law §§ 110.00, 120.07). At trial, there was considerable debate over the jury instructions as they pertained to the gang assault charge. Defendant took the position that each of the two aiding persons must also be an accomplice who shared the principal’s specific criminal intent. He also asserted that, if the jury acquitted any defendant, that defendant could not be considered an “aider” of the other two. To the defense, an acquittal of one was an acquittal for all three as to gang assault. In response, the People argued that every defendant is responsible for his own mens rea, so that an individual defendant’s guilt should turn on his own mental state, and not that of the persons who aided him. The judge adopted the People’s view and instructed the jury:

“Actually present is exactly the same, a person is *560actually present when such person is in a position to render immediate assistance to a person participating in the assault and is ready, willing and able to do so irrespective of whether such person intended to cause physical injury.

“Because of this definition of actually present, even if you find an individual defendant not guilty of this crime, because the People have not proven beyond a reasonable doubt that he had the intent required for the commission of the crime, you can still find another defendant or defendants guilty if you find that the not guilty defendant was actually present as [the court] defined that term and that all the elements of the crime are proven by the People beyond a reasonable doubt” (emphasis added).

During deliberations, the court reiterated its position while responding to two jury notes, stating:

“If [the jurors] find that the People have proven beyond a reasonable doubt each of the elements of Gang Assault in the First Degree, as to a particular defendant then the fact that two men were on Griffin and one on McCormack can constitute Gang Assault in the First Degree.”

The jury acquitted all three defendants of first-degree gang assault, but convicted defendant and Jurlina of gang assault in the second degree. The jury acquitted Amitrano of any conduct relating to Griffin, and convicted him of misdemeanor assault in the third degree relating to McCormack. Defendant was sentenced to eight years’ imprisonment with five years’ post-release supervision.

On defendant’s appeal, the Appellate Division modified his sentence in the exercise of discretion to six years and otherwise affirmed (57 AD3d 1 [1st Dept 2008]). The court held that the jury was correctly instructed that an acquittal of one of the three defendants of all charges relating to one victim would not require that the other two defendants be acquitted of the gang assault charges as to that victim (id. at 5-7). The court further held that there was record support for the jury’s conclusion that Amitrano, while “actually present” at the scene, “aided” the assault on Griffin by defendant and Jurlina, “even if the jury also concluded that Amitrano was not himself guilty of participating in the assault on Griffin either as a principal or as an *561accomplice” {id. at 10). The court noted that Amitrano was convicted of assaulting McCormack, and that by “taking McCormack out of commission, Amitrano prevented McCormack from helping Griffin or otherwise thwarting Sanchez’s attack on Griffin” {id.).

A Judge of this Court granted defendant leave to appeal (12 NY3d 762 [2009]).

People v Mynin

In August 2005, defendant and three other men drove to 151st Street in Manhattan to purchase $1,600 worth of marijuana. Darnell Moore took their money and returned with fake marijuana. Defendant detected the fraud and challenged Moore. A struggle ensued between Moore, defendant and the three men, which involved their attempt to get Moore into the vehicle. During the struggle, Moore was fatally shot, the bullet penetrating his chest and several vital organs. Defendant and the three men were chased down by the police. Just before the stop, someone in the car threw out the pistol that had been used to kill Moore, but the police recovered it. At the precinct, defendant told the police that he and his three companions had attacked Moore “looking for the money” and that the gun “went off.”

Defendant was indicted for attempted kidnapping in the first degree, felony murder in the second degree, and gang assault in the second degree. Indicted on the same charges were the other men involved in the incident. The case against the defendants was tried twice. The first jury was unable to reach a verdict on any count as to any of the defendants, and a mistrial was declared in June 2006. In January 2007, the case was retried.

At the beginning of the court’s jury charge, the court instructed the jury generally on accomplice liability. As it pertained to the gang assault charge in particular, the judge instructed the jury:

“A person is guilty 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 at least serious physical injury to such person.

“In order to find a defendant guilty of this crime, the People must prove beyond a reasonable doubt each of the following three elements:

*562“First, that on or about August 25th, 2005 in the county of New York the defendant or a person with whom he was acting in concert caused serious physical injury to Darnell Moore. . . .

“The second element is that the defendant himself, that is the defendant whose liability you are considering, acted with the intent to cause at least physical injury to Darnell Moore. . . .

“The third element is that defendant was aided by two or more persons actually present. This is separate from my general instructions on acting in concert. This is an element of this charge that the defendant was aided in some way by two or more persons actually present.

“A person is actually present when he’s in a position to render immediate aid to a person participating in the assault and is ready, willing, and able to do so” (emphasis added).

During deliberations, the jury returned a note asking if “fewer than three people [can] be convicted on a charge of gang assault.” Defense counsel argued that each defendant must have the intent to cause physical injury, so at least three would need to be convicted. The prosecutor argued, by contrast, that fewer than three people could be convicted under the statute because an individual may provide aid but not have the particular intent required by the gang assault statute. The court agreed with the People and instructed the jury that fewer than three people could be convicted on a charge of gang assault.

The jury returned another note asking, “Do you need three or more defendants to have intent to cause physical injury or does just one defendant have to have the intent plus two or more others that aid but don’t have intent to cause physical injury?” After some more discussion between the attorneys, the court instructed the jury that “you do not need three or more defendants to have intent to cause physical injury.”

The juiy acquitted all of the codefendants on all of the charges and acquitted defendant of both felony murder and attempted kidnapping. Defendant was convicted of a single count of gang assault in the second degree.

On defendant’s appeal, the Appellate Division affirmed (58 AD3d 581 [1st Dept 2009]). As relevant to this appeal, the court held that Supreme Court correctly instructed the jury that in *563order to convict a defendant of gang assault it was not obligated to convict any other defendants of that crime, and that a person may be “aided by two or more other persons actually present” even if those persons lack the mental culpability to be guilty as accomplices under Penal Law § 20.00 (id. at 582). It further held that “[t]he court’s instructions, viewed as a whole, properly distinguished between the concepts of ‘aiding’ and ‘acting in concert,’ and were not confusing” (id.).

The court found that defendant did not preserve his contention that the verdict finding him guilty of gang assault while acquitting all the codefendants was repugnant, and declined to review it in the interest of justice (id.). As an alternative holding, the court also rejected it on the merits (id.). The court held that Supreme Court’s charge clearly permitted the mixed verdict at issue (id.). Furthermore, the court found that

“the fact pattern permitted the jury to conclude that the codefendants, who were ‘actually present’ at the scene, ‘aided’ defendant’s assault of the victim for purposes of satisfying the gang assault statute, even if the codefendants were not themselves guilty of participating in the assault either as principals or as accomplices. Moreover, the jury could have found that there were multiple participants, while also finding, ‘however illogically,’ ... a lack of proof of the identity of the particular codefendants as being those participants” (id., citing People v Maldonado, 11 AD3d 114, 118 n [1st Dept 2004], Iv denied 3 NY3d 758 [2004]).

A Judge of this Court granted defendant leave to appeal (12 NY3d 857 [2009]).

Analysis

The law making “gang assault” a crime was enacted in 1996 and contains two degrees of severity (L 1996, ch 647, § 2). Gang assault in the first degree is defined as follows: “A person is guilty of gang assault in the first degree when, with intent to cause serious 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 to a third person” (Penal Law § 120.07). Gang assault in the second degree is defined identically, except that it requires the accused to act with the lesser intent to cause physical injury: “A person is guilty of gang assault in the second degree when, with intent to cause *564physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person” (Penal Law § 120.06).

Both crimes require that the defendant be “aided by two or more other persons actually present” and the proper interpretation of that phrase is the core issue on this appeal.

The gang assault statutes were modeled in part on the crime of robbery in the second degree (Penal Law § 160.10 [1]). In particular, the element of “aided by two or more other persons actually present” is taken from the current robbery statute, which requires the defendant to be “aided by another person actually present” (see Penal Law § 160.10 [1]).

The robbery statute once required that the defendant be “aided by an accomplice actually present.” (Penal Law of 1909 § 2124 [2].) That requirement was revised when the Legislature replaced the word “accomplice” with the phrase “another person” (see Penal Law § 160.10 [1]). The deliberate revision to the robbery statute has been viewed by some courts, including the Appellate Division in Sanchez, as showing a clear intention by the Legislature to establish that for the crime of robbery, the aider need not share the specific intent and mental culpability required for accomplice liability (see also People u Green, 126 AD2d 105, 106 [2d Dept 1987] [concluding that “oné may aid in the commission of a robbery within the meaning of Penal Law § 160.10 (1) without engaging in conduct sufficient to support a finding of guilt on the basis of accessorial liability”]). In other words, a defendant can be found guilty of the crime of robbery in the second degree even when his codefendant is acquitted.

This Court, analyzing the language “aided by another person actually present” in the robbery statute, has held that “constructive presence” is insufficient to sustain a conviction (People v Hedgeman, 70 NY2d 533 [1987]). In People v Dennis (75 NY2d 821 [1990]), we further explained that when another person is in a position to render immediate assistance to the defendant, his or her presence poses a sufficient risk of additional violence, so as to satisfy the element of another person “actually present.”

Thus, for the purposes of the element “another person actually present” in the robbery statute, the other person must actuálly be present, at least in the immediate vicinity of the crime, and be capable of rendering immediate assistance to an individual committing the crime. The interpretation of the *565robbery statute is equally applicable to the similarly worded gang assault statutes.

Before anything else, we must look to the language of the gang assault statutes. Each statute, on its face, speaks only to the intent of the defendant and not to his aiders. No particular mental state is expressly required of those who comprise the gang. They must simply be present and render aid to the defendant. The Legislature did not provide that they must share defendant’s intent to cause physical injury.

This interpretation is also supported by the legislative history of the statutes, which reveals that the purpose of the gang assault crime was “to enhance public safety ... in recognition of the severity of assaults committed by gangs” (Governor’s Program Bill Mem, at 1, Bill Jacket, L 1996, ch 647, at 6, 1996 NY Legis Ann, at 476). Gang assaults, particularly by youths, had been increasing, and such assaults “pose a greater threat to public safety than assaults committed by individual actors” (Governor’s Mem approving L 1996, ch 647, 1996 McKinney’s Session Laws of NY, at 1919). The Governor’s supporting memorandum noted that “the joint action of numerous assailants is not only terrifying to victims but tends to increase the likelihood that severe or lethal injuries will be inflicted” (Governor’s Program Bill Mem, at 2, Bill Jacket, L 1996, ch 647, at 7, 1996 NY Legis Ann, at 476-477). The Governor’s supporting memorandum recognized “that to commit an assault with the aid of others is tantamount to committing an assault by means of a deadly weapon or dangerous instrument” (id.).

Thus, one of the primary purposes of the crime of gang assault was to recognize that when a victim is confronted by a group of individuals, rather than one individual, he or she is confronted with a more threatening, intimidating and dangerous situation that increases the possibility of escalating violence and physical harm (see Hedgeman, 70 NY2d at 541). That enhanced fear is present even if the “aider” does not have the same criminal intent or purpose of the defendant. So long as a person is “aiding” another to commit the crime, regardless of whether that aid is rendered with the intent to cause physical injury, the victim is still facing a more threatening scenario. In other words, even though the person may not have the intent to cause physical injury to the victim, they are still aiding the *566defendant for purposes of the statute by assisting defendant in causing that harm.*

Even more, gang assaults are often spontaneous and frenzied events undertaken by a number of individuals, many of whom may never be identified. They are dangerous precisely for their chaotic nature. Therefore it makes sense for the Legislature to require the People to prove only that the charged defendant, not other participants in the assault, had the requisite criminal intent to cause physical injury.

Thus, we hold that a defendant can be found guilty of gang assault, if he or she acts with the requisite mens rea and aid, even if one or more of the persons who aid do not share his or her intent to cause physical harm. Contrary to the dissent’s suggestion, we do not hold today that no mens rea is required of an aider. The only issue presented by defendants is whether the persons who provide aid must share the mental culpability of defendant. We thus have no occasion to define the exact intent needed, if any, of the persons aiding the defendant. We now turn to each particular case.

People v Sanchez

The court properly instructed the jury that for the gang assault charge, the defendant may be found guilty if he acts with the intent to cause physical injury, whether or not those who aided him in the assault shared the same intent.

Viewing the evidence in the light most favorable to the People, it was reasonable for the jury to conclude that Amitrano and Jurlina aided the defendant in the commission of the gang assault on Griffin. There was some evidence at trial that both Amitrano and Jurlina actually joined in on the assault of Griffin. In that way, both Amitrano and Jurlina aided in the assault. Even if Amitrano did not attack Griffin, he attacked McCormack and prevented McCormack from intervening in defendant’s attack on Griffin. This provided an additional basis for *567the jury to find that Amitrano was acting in aid of defendant’s effort to injure Griffin. Accordingly, the jury was entitled to find that both Amitrano and Jurlina aided defendant in his commission of the gang assault.

We find no merit to defendant’s remaining contentions.

People v Mynin

Defendant claims that the jury instruction was erroneous because, along with the gang assault charge, the judge instructed the jury that the case was governed by the accessorial liability standard.

The accomplice liability rules charged by the court were undisputedly relevant to the other counts against defendant. They were also relevant on the gang assault count as the jury could consider whether any of defendant’s actions could be attributed to the codefendants who shared the intent to harm Moore. Furthermore, the judge explained to the jury that on the gang assault count, the jury was to consider the intent of the particular defendant. And when answering the jury notes, the judge clarified to the jury that the People need not prove that the other persons present and aiding defendant acted with the intent to cause physical injury. Thus, we find no error with the charge to the jury.

Accordingly, in each of the cases the order of the Appellate Division should be affirmed.