Kings County Family Court Judge, Lee H. Elkins, has dismissed a juvenile delinquency petition against an alleged gang member, Christopher M.
Juvenile delinquency petitions are rarely dismissed.
Christopher was charged with Unlawful Assembly and Riot in the 2nd Degree based on the following allegations in the petition:
“At approximately 3:10 p.m. on June 2, 2010, police responded to a radio call and observed two groups of young people facing each other. The groups were near a school. The police affiant states that two groups were “threatening” each other. The affidavit does not recount the words that the officer deemed “threatening.” Ten individuals comprised one group and twenty comprised the other. The respondent was seen in the group of twenty individuals. The affiant recounts that some members of the group were “reaching for their waistbands,” without indicating that any weapons were seen. Members of the respondent’s group possessed a golf club, a broomstick, and a belt. The person with the belt waived the belt in the air over his head. When the police attempted to disperse the groups, one of the members of the respondent’s group threw a glass bottle, which shattered on the ground near the police. Pedestrians in close proximity to the groups crossed the street in the direction away from the two groups.”
Based on In re Donovan B., 278 AD2d 95, 717 NYS2d 180 (1st Dept. 2000), the petitioning agency argued that the acts of the entire group of twenty individuals should be imputed to Christopher M. The court distinguished between In re Donovan B and the present case.
In the former case, “the respondent, wearing gang colors, was engaged in a fist fight with an individual wearing the colors of a rival gang, in close proximity to a battle between large groups of gang members. There the respondent’s conduct in wearing gang-colored attire and participation in a physical fight occurring in close spatial and temporal proximity to the larger fight, supported an inference that he shared the purpose of his fellow gang members to engage in imminent tumultuous and violent conduct.”
In Christopher M.’s case, the court said:
“The petition in this case does not contain any specific information, other than the respondent’s presence, that links him to the conduct of the larger group. There is nothing alleged to support an inference about the respondent’s purpose in being present or upon which to impute a purpose from the larger group to him. Therefore, the petition fails to state factually any act by the respondent which would support an inference that he shared a purpose to engage in imminent tumultuous and violent conduct, as required by Penal Law § 240.10.”
For More Informaton:
Read a similar opinion in People v. Lopez
Read another similar opinion in People v. M.R.