The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
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 statute's language and history establish that they do not.
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 co-defendants 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.
When 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 co-defendants 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 it 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 actually 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 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 of Griffin either as a principal or as an accomplice" (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.
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 money" and that the gun "went off."
Defendant was indicted for attempted kidnaping 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: First, that on or about August 25th, 2005 in the County of New York the defendant or a person with whom he was acting ...