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Two alleged members of the Bloods street gang, indicted on murder and other charges in the drive-by shooting death of a man outside a Brooklyn social club, have seen their constitutional challenge to a lesser count of gang assault dismissed by a Brooklyn judge. The men, Sean Fatal and Darryl Williams, had argued that the wording and title of the gang assault statute is unconstitutional because it allows prosecutors to identify defendants as gang members without either proof or a hearing as to the possible prejudice to the jury. But in a case of apparent first impression, New York Supreme Court Justice Carolyn E. Demarest disagreed. “[T]his Court’s conclusion, based upon the language of the statute and the legislative history, [is] that the word ‘gang’ as used in the Gang Assault statute has no associational implications but is limited to the requirement that a minimum of three persons be actually present and participating in the assault,” she wrote. “The jury will be so instructed.” The case, People v. Sean Fatal & Darryl Williams, 9261/00, stems from an incident last Oct. 22 outside the Brooklyn Entertainment Center on Avenue D in East Flatbush. According to the indictment, after an argument between members of the Bloods and members of the rival Crips gang, Fatal and Williams and another man fired shots from a car driven by a fourth man, killing Jean Bien-Aime and wounding Jean Hilaire. Both victims were identified by police as Crips. Fatal and Williams were arrested two weeks later and charged with murder and other crimes, including Gang Assault in the First Degree. The gang assault charge, under Penal Law Section 120.07, reads: “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.” In their motion to dismiss the gang assault charge, the defendants contended that the statute is a violation of due process rights because it allows a defendant to be denominated a gang member without proof and without a hearing on the label’s prejudicial impact on the jury. In addition, Fatal and Williams argued that the language of the charge requiring that the assault be committed by two or more persons “actually present” is unconstitutionally vague. CALIFORNIA STATUTE In her analysis of legislative intent, Justice Demarest used as a counterpoint the California Street Enforcement and Prevention Act (California Penal Law Section 186.21), noting that it was enacted by that state in 1988 “to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs.” The California law explicitly requires the defendant to be an active and knowing participant in a criminal street gang. By contrast, the judge pointed out, the New York gang assault statute does not require evidence of an association with an organized group of any kind. “[T]he only requirement under New York’s Penal Law Sections 120.06 and 120.07, other than the intentional infliction of injury, is that there be at least three persons actually present to assist in the commission of the assault,” Demarest wrote. “It is apparent that the New York State Legislature rejected the elements of ‘gang membership’ as outlined in the California statute.” As to the defendants’ argument that the language in the statute requiring the aid of “two or more persons actually present” is unconstitutionally vague, Demarest found that the wording was taken verbatim from the definition of “another person actually present” in Penal Law Section 160.10(1) for Robbery in the Second Degree, which was first enacted in 1881. And the judge concluded that the meaning of such an aggravating element has been unequivocally defined by the New York Court of Appeals. “The participants in the assault must be physically present, willing and able to render immediate aid to one another, and must, by their presence, pose an additional risk of violence,” Demarest wrote. “There is no vagueness in this element of the crime of Gang Assault.” Given the evidence that Fatal and Williams were with two other men in a car when shots were fired that hit the two victims, the judge added, “[t]here is no doubt that Defendants’ alleged conduct meets the elements of the crime of Gang Assault.” Finally, Demarest noted that the prosecution does, in fact, hope to present evidence of the defendants’ actual gang membership, to establish the motive for the crime. In the event that such evidence is allowed to be introduced, she wrote, the jury will be instructed that the word “gang” as used in the gang assault statute means only three or more people actually present and aiding each other in the commission of an assault. Assistant District Attorney Maria A. Leonardi represented the government. Sam Gregory of Brooklyn’s Lazzaro & Gregory represented Fatal. Robert Ellis, of Manhattan, represented Williams.

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