Yesterday the Appellate Division, First Department decided In re: Tatiana
N., N.Y.L.J. (1st Dep’t April 8, 2010). The facts of the case were
“This juvenile delinquency proceeding arose from events that occurred
at a movie theater on East 161st Street in the Bronx, in which a family
was subjected to a moviegoer’s worst nightmare: a group of rowdy,
uncontrolled teenagers sat near them and disrupted their enjoyment of
the movie, and then, having ignored or mocked requests to behave properly
and been ejected from the movie theater, lay in wait for the family outside
the theater in order to surround, threaten and attack them when they emerged
from the theater.
On November 24, 2007, appellant Tatiana N. and her co-respondent Terrence
M., accompanied by a number of other youths, arrived at the theater at
approximately 10 p.m. Complainants J.F. and R.W., along with J.F.’s
24-year-old daughter and her two-year-old son, were watching a movie that
was about two-thirds under way. The youths sat near the family and began
making crude remarks, using their cell phones, and being noisy and disruptive.
J.F. and then R.W. asked them “to please keep the noise down.”
Some unpleasant remarks were offered in response, which J.F. and R.W.
initially disregarded, until, after a subsequent request to keep the noise
down, the group responded by becoming aggressive and cursing, saying “[t]he
[h]ell with you,” “[f]___ you,” and “[s]hut up.”
R.W. then left his seat to go to the lobby to complain, brushing Terrence’s
arm or cell phone in the process. The teenagers followed him out. J.F.,
concerned for R.W.’s safety, followed as well.
When the group reached the lobby, an argument ensued in front of a theater
security guard. After about three minutes R.W. and J.F. were permitted
to return to the movie; the teenagers were not. A few minutes after they
had returned to their seats, however, one of the theater staff asked them
to return to the lobby. The group of teens was still there, cursing and
threatening to “kick your ass,” and the guard informed R.W.
that Terrence had alleged that R.W. punched him in the face. R.W. denied
the charge, and he and J.F. were again permitted to return to the theater.
During this interchange, Terrence looked at R.W. and pointed his left
hand at R.W. in the shape of a gun.
At the end of the movie, J.F. called for a cab to pick the family up outside
the theater, but they had to cross the theater parking lot to meet it.
They exited the building and had begun walking across the parking lot,
J.F. taking the lead in an effort to look out for the rest, when the group
was surrounded from behind by the teenagers, including Terrence and Tatiana,
threatening and taunting them with such remarks as “Oh, what[,]
you be tough now,” and “I’m going to kick your ass.”
J.F. gave his daughter his cell phone, telling her to call the police.
R.W. turned and headed back to the theater to seek assistance from theater
security staff, and several of the teenagers, including Terrence and Tatiana,
followed and attacked him, with Terrence and another teenager hitting
him from behind. J.F. ran toward R.W. to assist him, and the group then
focused on J.F., trying to hit him. When R.W. returned, he tried to help
J.F., and both men testified that they saw Terrence swinging at J.F. with
a knife in his hand. According to J.F., Terrence had also tried to punch
him, but he was able to block the blow and kick Terrence in the chest.
J.F. testified that he sustained injury to the area around his ribs in
the process of jerking around to avoid the attack.
The teenagers regrouped, and Tatiana turned to threaten J.F.’s daughter,
who was holding her two-year-old son. Tatiana taunted, “I’m
going to kick your ass, come on let’s fight,” and told the
young woman to “put the kid in the car” so they could fight.
R.W. stepped in between the two women, and Tatiana swung at R.W. and pulled
his hair, her fist grazing his forehead but not causing any injury. When
J.F., in turn, warned Tatiana not to hit the others, Tatiana chest-bumped him.
J.F. kept yelling that the police were on the way, and eventually the teens
headed east on 161st Street. The police arrived shortly thereafter.”
All of the judges agreed that these facts made out attempted assault, menacing
and related charges with respect to Tatiana’s conduct toward J.F.
The primary question on appeal, however, was whether Tatiana could be
held liable as an accessory to Terrence’s second-degree Assault
(assault with a deadly weapon) charge. Tatiana argued that her level of
participation in Terrence’s knife assault did not rise to the level
necessary to support that she acted in concert with Terence to achieve
the knife assault. As put by the majority (Saxe, J.): “We disagree
with regard to whether the evidence supports those findings against Tatiana
that are based on her accessorial liability for Terrence’s use of
a knife: assault in the second degree, attempted assault in the second
degree, menacing in the second degree, criminal possession of a weapon,
and reckless endangerment. Our colleague would vacate those findings,
apparently on the ground that Tatiana neither possessed nor exercised
control over the knife used by Terrence, nor importuned its use. In our
view, the factual issue of whether Tatiana was aware that Terrence possessed
the knife and intended that it be used during the group’s attack
was correctly resolved here.”
After discussing general principles of accessorial liability, the Court
stated that “Where an individual continues to participate in a criminal
activity after a companion pulls out a previously concealed weapon, the
factfinder may rationally conclude that the individual shared the requisite
intent for the crime (see id.). Indeed, even the mere act of blocking
a victim’s path of retreat has been found to support a finding of
accessorial liability (see e.g. People v. Linen, 307 AD2d 855, 855-856
, lv denied 1 NY3d 575 ). Had Tatiana merely helped surround
the family during Terrence’s attack, a finding of accessorial liability
would have been proper. But she did much more than that. While Terrence
attacked J.F. with a knife, Tatiana was present, shouting threats and
throwing her own punches, and she continued to participate in the attack
on the family long past the moment when Terrence began using the knife.
Tatiana’s taking part in chasing, surrounding, threatening and attacking
the entire party of victims, and more particularly chest-bumping J.F.
in the course of threatening his daughter after Terrence had attacked
with the knife, justifies the conclusion that she and Terrence were working
together to menace and attack J.F. and his family, which involved the
use of Terrence’s knife, and that she shared in Terrence’s
intent to use the knife as part of the attack (see e.g. Matter of Tiffany
D., 29 AD3d 693 ).”
Justice Andrias dissented primarily on the ground that there was insufficient
evidence to support the inference that Tatiana had knowledge that Terrence
was going to use or actually did use a knife in the assault: “There
is no evidence whatsoever that appellant possessed or exercised control
over the knife, gave the knife to Terrence, or knew that Terrence possessed
the knife and intended to use it during the attack. Neither the complainant
nor his partner knew where Terrence got the knife and neither saw appellant
with a knife at any point. Nor can it be determined whether appellant
ever saw the knife in Terrence’s hand during the course of the attack
and supported its continued use thereafter. The complainant testified
that he could not see very clearly, and neither he nor his partner was
able to describe the knife in detail. The complainant’s partner
only saw Terrence “flash” a knife, but did not see Terrence
swing the knife. While the teenagers may have taunted that they would
“kick your ass” at various moments during the encounter, there
was no testimony that appellant or any other of the teenagers ever importuned
the use of a knife. The complainant also testified that appellant was
standing to the side of Terrence at the point when the teenagers surrounded
him. The complainant’s partner testified that he did not see appellant
hit the complainant and that the complainant was hit when he was surrounded
by Terrence and “other guys.” Thus, it cannot be determined
on the record before us when appellant separated from Terrence and the
other teenagers to confront the complainant’s daughter, who was
standing a number of yards away, or whether appellant was still with the
group of teenagers confronting the complainant when Terrence allegedly
flashed or swung the knife. Accordingly, the foregoing counts requiring
that appellant share Terrence’s specific intent to possess, display
or use a dangerous instrument should have been dismissed (compare People
v. McLean, 307 AD2d 586 , lv denied 100 NY2d 643 ).”
A mechanism in the law will allow for Tatiana’s lawyers to seek leave
through Justice Andrias, and we suspect that this question may ultimately
be decided by the Court of Appeals in Albany.