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Second Department overturns Family Court on the basis of a Surveillance Videotape as contrary to the

Facts: “On June 5, 2012, the complainant, who was then in eighth grade, wore his mother's wig to school as a joke. As he entered the school cafeteria during the breakfast period and sat down with friends, a group of seventh-grade students including the appellant, who was then 12 years old, began taunting the complainant with various anti-homosexual/transgender epithets. About 20 seconds later, the complainant stood and approached the appellant's neighboring table and demanded that the boys stop their taunting. One of the appellant's companions stood and confronted the complainant and, as they argued, the appellant approached. Thereafter, the situation quickly degenerated into a physical fight, during which the right lens of the complainant's glasses, which was already cracked with a piece missing, broke and cut his right eye, leaving him blinded in that eye despite multiple surgeries attempting to restore his sight.”

What could be considered typical junior high (these students were 12 years old) taunting and inappropriate taunting and bullying escalated into much more. The Family Court found the situation to be, a child who, if treated as an adult, would have been charged with crimes of assault in the third degree as a hate crime, menacing in the third degree as a hate crime, and criminal mischief in the fourth degree as a hate crime. If so, was the child entitled to the defense of justification? The Second Department made careful note that “the surveillance video recording that was entered into evidence showed that, after the appellant allegedly threatened to knock the complainant's glasses off, he extended his hands, palms up, in a peace-making gesture and then withdrew for approximately 20 seconds.” It seems that the situation could have stopped there. The Second Department certainly thought so: “the evidence did not support the conclusion that the appellant, by his conduct or by verbal threats, was the initial aggressor.”

Law: “The defense of justification is available where, inter alia, the actor is acting in self-defense and the actor was not the initial aggressor (see Penal Law §§35.05, 35.10, 35.15; People v. Petty, 7 NY3d 277, 284-285). An actor is not the initial aggressor where his or her conduct consists of "mere insults as opposed to threats" (People v. Gordon, 223 AD2d 372, 373; see People v. Baez, 118 AD2d 507, 508; People v. Giammarino, 105 AD2d 802, 803). Where this defense is raised, the presentment agency must disprove it beyond a reasonable doubt (see Penal Law §§25.00, 35.00; Family Ct Act §303.3).”

Holding: “Notwithstanding the deference this Court gives to the credibility determinations of the Family Court (see Matter of Uriah D., 74 AD3d 1194, 1195; Matter of Jamel G., 51 AD3d 918, 919; Matter of Kedne L., 45 AD3d 843, 844), here, the Family Court's rejection of the appellant's defense of justification based upon self-defense was contrary to the weight of the evidence (see People v. Romero, 7 NY3d 633, 643-644; People v. Cahill, 2 NY3d 14, 58).” The Appellate Division decided that “[t]he Family Court's conclusion that the appellant committed an act which, had it been committed by an adult, would have constituted the crime of menacing in the third degree as a hate crime, is also contrary to the weight of the evidence.”

The case is Matter of Mondy E., D-14758-12, NYLJ 1202673013084, at *1 (App. Div., 2nd, Decided October 8, 2014).

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