80 A.D.3d 83
N.Y. App. Div.2010Background
- Question whether a high school gang, the Lost Boys, fits the statutory term 'organization' under Penal Law §§ 120.16, 120.17 (hazing in the first and second degree).
- Statutory framework: two hazing degrees; consent is not expressly required as an element in § 120.16, but the defense of lack of consent is treated carefully.
- Historical context shows New York hazing legislation evolved from 1894 to broaden reach beyond schools to all organizations engaging in hazing.
- Factual core: complainant joined Lost Boys after recruitment; he endured a multi-event beating during a 'jumping in' initiation at a park, recorded on video.
- Appellant coordinated initiation by counting and directing participants, and the video was linked to him by school personnel recognizing his voice.
- Court retains view that whether consent defeats liability is addressed, ultimately concluding consent is not a valid defense under the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Lost Boys an organization under the hazing statutes? | Lost Boys constituted an organization. | No clear evidence of organization. | Yes; the gang fits the broad 'any organization' meaning. |
| Does victim's consent defeat hazing liability? | Consent could undermine prosecution if seen as voluntary. | Consent not required; public policy bars defense in hazing cases. | Consent not a valid defense under these circumstances. |
| Can appellant be held liable as an accomplice or co-conspirator? | Appellant shared a community of purpose by coordinating and recording the initiation. | Appellant merely recorded and did not participate in the beating. | Appellant shared a community of purpose; liable for conspiracy and attempted hazing. |
| Were the facts legally sufficient to support conspiracy and attempted hazing convictions? | Evidence shows orchestrating role and initiation conduct. | Evidence insufficient for adult-level crimes. | Sufficient evidence; convictions affirmed as to conspiracy and attempted hazing. |
Key Cases Cited
- People v Ward, 282 A.D.2d 819 (2001) (common meaning of organization; broad construction of term)
- People v Wing, 77 N.Y.2d 851 (1991) (protects victims in hazing prosecutions)
- People v Jovanovic, 263 A.D.2d 182 (1999) (no attendant defense of consent for certain assaults)
- People v Montague, 245 A.D.2d 391 (1997) (accomplice liability concepts under CPL 60.22)
- McKenzie v State, 131 Md. App. 124, 748 A.2d 67 (2000) (consent and hazing; social consequences discussed in balancing public policy)