DECISION AND ORDER Defendant, Kaliyah Phillips, is charged pursuant to Kings County Indictment 72362-21, with the crimes of Gang Assault in the Second Degree (Penal Law [hereinafter: P.L.] §120.06) and Attempted Assault in the Second Degree (P.L. §110/120.05[2]), under an accessorial liability theory. The defendant moves this Court to inspect the grand jury minutes and, upon such inspection, seeks dismissal of the instant indictment, challenging the legal sufficiency of the evidence presented, the propriety of the legal instructions provided, and the manner of the presentation. Evidence was presented to the Grand Jury that on or about May 10, 2021, the defendant was at her residence with several other individuals when a female, known as Desire, arrived at the defendant’s residence complaining that Shaheem Bascom (hereinafter: decedent) was harassing her. The group devised a plan to “line him up” and have the decedent attacked at a specified location. Desire called the decedent and told him to meet her on Linwood Street and Hegeman Avenue (hereinafter: locus in quo), in Kings County, and the decedent agreed. Blurry, grainy surveillance video1 shows a group of approximately five or six individuals leave the building identified as the defendant’s residence and travel to the locus in quo to meet the decedent. When the group spotted the decedent two males wearing black hooded sweatshirts ran at the decedent. One male punched the decedent, knocking him to the ground, while the other brandished a firearm, aimed at the decedent and shot the decedent in the chest. Thereafter, the group returned to the defendant’s residence. Said video is corroborative of the defendant’s statement to police. The defendant further stated to police that after the homicide she contacted her boyfriend, “a high ranking crip gang member” and informed him of what had transpired. Then on the defendant’s boyfriend’s direction, the group traveled to the Bronx to meet with another “high ranking gang member” who, after the defendant explained what happened, assisted the two males in fleeing the jurisdiction. No evidence of the defendant’s actual involvement in the charged crimes was elicited before the Grand Jury, save for the group being at the defendant’s residence when the attack of the decedent was planned and that the defendant spoke to the “high ranking” gang members about the incident after it was completed (emphasis added). It is well established that the law requires the People to present legally sufficient evidence that there is reasonable cause to believe that a crime was committed, and that the defendant committed that crime. The burden of proof for a Grand Jury proceeding is not beyond a reasonable doubt, but rather that the People must make a prima facie showing utilizing legally admissible evidence to satisfy each element of the charged crime (see People v. Pelchat, 62 NY2d 97; People v. Calbud, Inc., 49 NY2d 389). The People enjoy broad discretion when determining how to present a case to the Grand Jury (see People v. Rockwell, 97 AD2d 853 [3rd Dept, 1983]). “The prosecutor’s discretion in presenting the case to the Grand Jury, however, is not unbounded, for it is settled that at a Grand Jury proceeding, the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also see that justice is done; ‘as a public officer he owes a duty of fair dealing to the accused and candor to the courts’ (People v. Pelchat, 62 NY2d 97, 105).”. People v. Lancaster, 69 NY2d 20, 26 (1986). “The District Attorney’s duties as a public officer are quasi-judicial in nature and in the performance of his duties he must not only be disinterested and impartial but must also appear to be so.” (People v. Dzeloski, 161 Misc2d 867, 868-9 [Bronx Co Sup Ct, 1994], citing People v. Lofton, 87 Misc2d 572 [Kings Co Sup Ct, 1975]). In order to indict an individual for the crime of Gang Assault in the Second Degree, the People must establish to a prima facie standard that the defendant acted with an “intent to cause 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 a third person” (P.L. §120.06). Moreover, to charge the crime of Attempted Assault in the Second Degree, the People must establish, to the requisite standard, that the defendant acted “with the intent to cause physical injury to another person, he attempted to cause such injury to a person or to a third person by means of a deadly weapon or dangerous instrument” (P.L. §110/120.05[2]). For criminal liability to attach under a theory of accessorial liability for the conduct of another, the People must establish that “when one person engages in conduct which constitutes and offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct” (P.L. §20.00). Yet, the law requires more than someone being merely present, even when they cheer on, encourage criminal behavior, or even point out potential or intended victims to others for their criminal conduct (see People v. Akptotanor, 158 Ad2d 694, 695 [2d Dept 1990], ["defendant apparently flushed out the victim, the purpose established was less in degree than an intention to kill"]). “A defendant’s mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with the perpetrator of a crime is not enough for accessorial liability.” People v. Fonerin, 159 AD3d 717, 719, citing People v. Lopez, 137 Ad3d 1166, 1167; Matter of Tatiana N., 71 AD3d 186, 190-191 (emphasis added); see also People v. Chardon, 83 AD3d 954, 157 (2d Dept 2011) (Conviction vacated where People failed to establish either directly or by inference, under an accessorial liability theory, “the actions of the defendant based on the entire series of events, that the defendant carried a dangerous instrument, stabbed the complainant, or was aware that any of his coperpetrators intended to stab the complainant”). Based upon the video evidence, the decedent’s and the defendant’s own statements, it is not in dispute that the decedent was attacked by two individuals, one wielding a deadly weapon which caused the decedent’s death by gunplay, while several others looked on. However, upon review of the instant presentation to the Grand Jury, this Court is at a loss to identify a scintilla of evidence establishing this particular defendant’s criminal liability, even under the lesser standard of proof required for indictment by a Grand Jury. Based upon the foregoing, this Court finds that the instant indictment must be dismissed on the grounds that the evidence presented to the Grand Jury was not legally sufficient to support criminal liability as to the defendant, to a prima facie standard. The defendant’s application seeking dismissal of the indictment is hereby GRANTED. This constitutes the decision, opinion and Order of this Court. Dated: October 5, 2021
