When Can the Crime of 'Gang Assault' Be Established ?
In People v. Kim (255 AD2d 337 [2d Dept 1998]), defendant was charged, among other crimes, with gang assault, for an assault perpetrated by several accomplices to revenge an earlier attack.
Defendant admitted to driving several assailants while searching for the complaining witness and later drove the assailants from the scene of the attack.
His statement placed him at the scene with a bat in his hands.
Although there were allegations that this assault stemmed from an actual "street gang" revenge attack, the appellate court looked to defendant's actions and participation in the crime when deciding whether there was legally sufficient evidence adduced before the Grand Jury to support the crime of gang assault.
Finding that the evidence was sufficient upon the Grand Jury presentation, the Kim Court left to the jury the decision as to defendant's culpability in light of the complainant's testimony that "all of the members of the gang participated in the assault, but did not specifically inculpate the defendant" (255 AD2d, at 338).
In People v. Kleingartner (183 Misc 2d 771, 772 [Sullivan County Ct 2000]), looking to the traditional interpretation of the word "gang" as defined in Merriam-Webster's Collegiate Dictionary (10th ed) as "a group of persons working to unlawful or antisocial ends, especially a band of antisocial adolescents," the court found the proof insufficient to establish the crime of "gang assault" where all three defendants charged with gang assault in the first degree were not actually present, i.e., physically in the immediate vicinity of the assault so as to be available to render immediate aid to one another. (See generally, Caher, Ruling Highlights Flaws in Gang Assault Statute, NYLJ, Feb. 17, 2000, at 1, col 3.)
Without ruling as to whether such proof would be necessary, Judge LaBuda noted that there was no evidence that the three defendants were gang members or were complicit in a conspiracy to commit the assault.