In re Khalil H.

910 N.Y.S.2d 553

80 A.D.3d 83

In the Matter of KHALIL H. (Anonymous), appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2010.

Catherine A. Sheridan, Carle Place, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for respondent.

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, RANDALL T. ENG and CHERYL E. CHAMBERS, JJ.

CHAMBERS, J.

Introduction

Hazing, although encompassing different forms of conduct, is commonly understood to involve an initiation process which humiliates, degrades, abuses, or physically endangers persons who desire membership in an organization ( see Webster's Third International Dictionary 1041 [1986]; see also People v. Lenti, 44 Misc.2d 118, 121-122, 253 N.Y.S.2d 9). Elements of hazing can be traced back to the Middle Ages at European universities and was possibly rooted in ancient Greek civilization ( see Kuzmich, Comment, In Vino Mortuus: Fraternal Hazing and Alcohol-Related Deaths, 31 McGeorge L. Rev. 1087, 1088-1089 [2000], citing Symposium, The Works of Plato [The Modern Library 1956] ). Today, hazing occurs in varying settings ranging from college fraternities to the military ( see 10 USC § 6964; Maines v. Cronomer Valley Fire Dept., 50 N.Y.2d 535, 429 N.Y.S.2d 622, 407 N.E.2d 466; Vaughn v. Pool Offshore Co., 683 F.2d 922, 923-924). Hazing activities can range from relatively innocent and innocuous conduct to abusive and lethal conduct. As noted in the often-cited case, People v. Lenti, 44 Misc.2d at 122, 253 N.Y.S.2d 9, organizations and affiliations which engage in hazing "have never suffered for ideas in contriving new forms of hazing."

In this case, we primarily address whether a high school gang is an "organization" within the meaning of New York's hazing statutes (Penal Law §§ 120.16, 120.17) and whether a complainant can consent to being hazed.

The History of New York's Hazing Legislation

On February 20, 1894, the freshman class of Cornell University gathered for its annual banquet ( see People ex rel. Taylor v. Forbes, 143 N.Y. 219, 224, 38 N.E. 303). While the banquet was in progress, students from the sophomore class released chloride gas into the banquet hall, resulting in injuries to some of the freshmen and the death of a cook ( id. at 224, 38 N.E. 303).

Just a week after this incident, State Senator Henry J. Coggeshall proposed legislation to criminalize hazing committed by college students as a misdemeanor-level offense ( see The Greater New-York Bill: Passed by the Senate as it Came from the House, New York Times, Feb. 28, 1894). In 1894, the law was enacted, making New York the first state in the Union to criminalizehazing ( see McKenzie v. State of Maryland, 131 Md.App. 124, 748 A.2d 67, 70 n. 3). The statute made it "unlawful for any person or persons to engage in or aid or abet what is commonly called hazing, in or while attending any of the colleges, public schools or other institutions of learning in this state," and provided for a fine of up to $100 and/or a period of imprisonment of one year (L. 1894, ch. 265; former Penal Law § 1030).

Seventy years later, in April 1964, not unlike the scenario in this case, four students struck five pledges "about the body and face with clenched fists, open hands, forearms and feet" as part of an initiation ritual into a fraternity during "Hell Night" ( People v. Lenti, 46 Misc.2d 682, 683, 260 N.Y.S.2d 284). The four students were charged with hazing under former Penal Law § 1030, as well as assault in the third degree ( see People v. Lenti, 46 Misc.2d at 683, 260 N.Y.S.2d 284). Although thecourt found the evidence presented to the grand jury to be legally sufficient ( see People v. Lenti, 44 Misc.2d 118, 253 N.Y.S.2d 9), following the defendants' motions for a trial order of dismissal at the close of the People's case, the court granted the motions and dismissed the indictment ( see People v. Lenti, 46 Misc.2d at 683-684, 688, 260 N.Y.S.2d 284). Finding the statute to be "vague" and "ambiguous," the court raised concerns similar to those raised in the instant case as to whether the pledges should be considered accomplices as a matter of law or whether they consented to the hazing ( id. at 684, 260 N.Y.S.2d 284). The court urged the Legislature to write a more "enforc[ea]ble statute," suggesting that those who are hazed should "not be deemed accomplices as a matter of law," nor should their consent be a defense to prosecution ( id. at 686-687, 260 N.Y.S.2d 284).

In 1983, members of the Legislature responded by proposing legislation to address the concerns raised in Lenti, as well as other deficiencies in the statutory scheme that impeded prosecution of hazing crimes (hereinafter the 1983 bill). The drafters of the 1983 bill proposed amending Criminal Procedure Law § 60.22 to abolish consent as a defense to hazing crimes and the corroboration requirement so that hazing victims would not be considered accomplices ( see Mem. of Assemblyman Harenberg, 1983 N.Y. Legis Ann., L. 1983, ch. 716, at 311-312). In addition, the proposed bill expanded the reach of the Penal Law to cover all persons engaging in hazing activities, not just students in institutions of learning ( id. at 312, 253 N.Y.S.2d 9). However, while the Legislature adopted the Penal Law provision that expanded the law to cover "any organization" involved in hazing activities, it did not approve the proposed amendments to the Criminal Procedure Law (L. 1983, ch. 716).

In 1988, the Legislature amended the hazing statute by splitting it into two degrees (hereinafter the 1988 bill) ( see Penal Law §§ 120.16, 120.17). ¹ The 1988 bill, like the 1983 bill, reintroduced amendments to the Criminal Procedure Law that would have eliminated consent as a defense and the corroboration requirement ( see Prefiled Bill S419, Jan. 7, 1987; Sponsor's Mem. [Skelos], Bill Jacket, L. 1988, ch. 86). However, those amendments were not approved.

Since the enactment of the 1988 bill, the Penal Law provides two degrees of hazing. Hazing in the first degree, a class A misdemeanor, is defined as follows: "[a] person is guilty of hazing in the first degree when, in the course of another person's initiation into or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person and thereby causes such injury" (Penal Law § 120.16). Hazing in the second degree, a violation, is defined identically, except that it does not require the accused to cause physical injury: a person commits hazing in the second degree "when, in the course of another person's initiation or affiliation with any organization, he intentionally or recklessly engages in conduct which creates a substantial risk of physical injury to such other person or a third person" (Penal Law § 120.17). Recently proposed legislation would make those crimes, respectively, D and E felonies ( see 2009 N.Y. Senate Bill S298).

Factual Background

Through the testimony of the complainant and an assistant principal from the appellant's high school, the presentment agency adduced the following evidence at the fact-finding hearing.

At the beginning of the school year, the appellant, Khalil H., began recruiting the complainant for the "Lost Boys" gang, a group of teenage boys who banded together to provide each other with protection. The appellant told the complainant thatin order to become a member of the gang, he was required to participate in a "jumping in," where other gang members would repeatedly strike him. Another gang member told him about the gang's colors and beads, and that the "jump-in" would be held at the park. The appellant told the complainant that during the "jump-in," he would be allowed to shield his face from the blows with his hands. The complainant agreed to participate in this initiation ritual because he wanted to become a member of the "Lost Boys."

On the afternoon of October 31, 2008, while at a nearby park, four members of the "Lost Boys" surrounded the complainant and repeatedly struck him with closed fists and, at points when he fell, they kicked his head and ribs. While the appellant recorded the initiation with a video camera, he counted out loud, "one Lost Boy, two Lost Boys," until he counted to 20, at which point he directed the other members to stop. During the initiation, the complainant was beaten four separate times, the last time for entry into another gang. At no time did the complainant attempt to run away, and no one held him down. As a result of this "jumping in," the complainant testified that his ribs were red and hurt "a little" for the next two or three days. Following the initiation, he became a member of the "Lost Boys," and he attended one of its meetings. Subsequently, an assistant principal at the appellant's school discovered the video recording of the initiation when she confiscated a camera from another student. Based on having had many conversations with the appellant, the assistant principal testified that she was familiar with the appellant's voice. After the video was admitted into evidence and played in open court, she identified the appellant's voice as that of the person who counted and directed the other gang members when to start and stop.

Relying on the testimony of the two witnesses presented at the hearing, the Family Court concluded that the appellant committed acts which, if committed by an adult, would have constituted the crimes of conspiracy in the sixth degree and attempted hazing in the first degree.

" Any Organization "

The appellant contends that there was no evidence to establish that the Lost Boys was an organization within the meaning of the hazing statute. In fact, he argues that there was no evidence as to the Lost Boys' purpose, where it met, or any other evidence that would have established it was an organization. Moreover, the appellant argues, as there...