In People v. Rivera (2d Dept. 3/2/2010), the defendant alleged that he planned with two codefendants to fight and injure several persons. According to the defendant, once he arrived at the prearranged location for the fight, the victim had already been stabbed. The defendant later pleaded guilty to Gang Assault 1º in Supreme Court, Nassau County. During the plea allocution, defense counsel stated that his client was "pleading guilty based upon his accessorial conduct" before and after the fight. The People offered no objection to this statement.
On appeal, the Second Department addressed the issue of whether the Gang Assault 1º statute required the defendant's actual presence or whether the defendant's constructive presence by accomplice liability could satisfy the statute's requirements. Looking to its own precedent as well as that from the Court of Appeals and the Fourth Department, the Second Department held that the "statute requires actual presence to the extent that the other two persons must actually be in the immediate vicinity of the crime and be capable of rendering immediate assistance tot he individual committing the crime." Therefore, the court reasoned that the defendant "negated an essential element of the crime" during his plea allocution by stating through his counsel that he was pleading guilty based on his conduct before and after the fight but not during the fight. Therefore, the plea was vacated. (JTR/LC)
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