A source tells of an interesting case in New York which discusses the concept of a “person actually present”.
According to reports, Matthew S, Anthony A, and Nenad Jurlina were in a bar in the early morning of January 1, 2005. S wanted to bring his drink with him, as he was leaving, but Liam McC, the owner of the bar, would not allow him to. S got mad and took McC’s keys from the bar’s front door. He then left with A and J. McC got up to follow and his friend Herbert Gr, followed him too. When Mcc caught up with the three men, he asked for his keys back and a fight soon broke out. Gr was seriously injured while McC was not seriously hurt.
S, A, and J were charged with 2nd degree gang assault, and 2nd and 3rd degree assaults against G. Against McC, they were charged with attempted 2nd degree gang assaults and attempted 2nd and 3rd degree assaults. The Court told the jury that it had to judge first if the three were guilty of the charges against G. If they were found innocent of these, the jury should then judge if they were guilty of the charges against McC. The Court also advised the jury about the liabilities of accessories.
According to the police, 2nd degree gang assault is when a person, with the intention of hurting another person, with the help of two or more persons “actually present”, hurts that person. The Law explains that by “actually present” it means that the person was physically able and willing to give his help, regardless of an intention to hurt the victim.
Therefore, if a person is found not guilty of participating in the assault but is “actually present”, and the prosecution is not able to prove that he intended to participate in the act, then another person who participated in the assault can be found guilty of 2nd degree assault.
In this case, the prosecution should prove that Sanchez, together with Amitrano, and Jurlina, individually or together, caused injury to Griffin, with the intention of harming him. Also, that Sanchez was helped by another person “actually present” during the assault.
The Court advised the jury that even if it found one of the three men innocent, it did not mean that the other two were automatically innocent too. The jury asked the Court if it would still be a gang assault if they found that two people attacked Griffin and that the other attacked McCormack. The Court said yes.
It found Sanchez and Jurlina guilty of 2nd degree gang assault against Griffin and found Amitrano innocent of this charge. However, it found Amitrano guilty of 3rd degree assault against McCormack.
Sanchez argued against this. He said that if one person among them was found innocent, then the other two would have to be innocent of gang assault too. He cited the definition of 2nd degree gang assault which requires help from two or more persons “actually present”. He said that it would be impossible for Amitrano to aid them in the assault against Griffin without being guilty of assault against Griffin too.
The Court explained that the definition of 2nd degree gang assault had been patterned after the definition of 2nd degree robbery. Second degree robbery is defined as forceful stealing of another person’s property, with the help of another person “actually present”. The presence of another person “actually present” is a huge thing because it increases the evilness and degree of a crime.
The Legislative body, or the people who write the laws, saw that the presence of another person who might participate in the crime, increases the fear and danger that the victim is put through. This is true even in cases where the third person has no intent of participating in the crime. This was shown in a case where because of the presence of the driver of the getaway vehicle in a certain robbery, the crime was changed from 3rd degree robbery to 2nd degree.
After reviewing the details of the trial, the Court of Appeals decided that the lower court was correct in advising the jury that if one of the three men were found innocent, then the other two would automatically be innocent too.
Furthermore, the Court of Appeals agrees that Amitrano helped Sanchez and Jurlina assault Griffin even though he was innocent of the act. He was found guilty of assaulting McCormack and so was proven to be “actually present” during the assault of Griffin. Also, his presence made it more scary and dangerous for Griffin. Plus, in fighting with McCormack, he prevented McCormack from helping Griffin.
In conclusion, the Court of Appeals found Sanchez guilty of 2nd degree assault and sentenced him to a term of eight years, a prison sentence of six years, and a five year post-release supervision period.