3 students deny revised charges
Attorneys in Wilson want judgeto hold proceedings behind closed doors
By Thomas J. Prohaska – NEWS NIAGARA BUREAU
Updated: 09/10/08 4:06 PM
WILSON â€” As three former Wilson High School varsity baseball players pleaded not guilty to revised charges in a hazing case Tuesday, their attorneys called for all future proceedings in the case to be held behind closed doors.
Town Justice George R. Berger said heâ€™ll think about it before the three defendants, an 18-year-old and two 16-year-olds, return to court Nov. 18 on charges of forcible touching and hazing, stemming from an incident April 17 on a team bus, in which three junior varsity players allegedly had cell phones and fingers shoved into their pants.
However, Assistant District Attorney Robert A. Zucco said heâ€™d probably oppose the defense request for secrecy.
â€œI think itâ€™s a little late in the game, especially given the type of statements the [defense] attorneys have been making, that what happens in the courtroom should be sheltered from public scrutiny,â€ Zucco said.
He also said the defendants must plead guilty as charged or go to trial. â€œThere wonâ€™t be any offers of reductions or plea bargains,â€ Zucco said.
Mark Guglielmi, the attorney for the 18-year-old boy, noted that since the new charges are misdemeanors or lower, a conviction would result in automatic youthful offender status, meaning it wouldnâ€™t count on their records. He said he wants â€œfuture proceedings in private, pursuant to the youthful offender statute.â€
â€œI donâ€™t think itâ€™s good for the town to have it open,â€ said Kevin P. Shelby, attorney for one of the 16-year-olds.
The three boys originally were charged with felony counts of aggravated third-degree sexual abuse. Those were formally dismissed Tuesday and replaced with new charges of forcible touching, a Class A misdemeanor punishable by up to a year in jail. Also added were charges of first-and second-degree hazing, the former a misdemeanor and the latter a violation, which under New York law is not considered a crime.
â€œFrankly, the hazing should have been charged in the first place. That was an oversight, in my opinion,â€ District Attorney Michael J. Violante said.
P. Andrew Vona, attorney for the second 16-year-old, derided the hazing charges. â€œThe misdemeanor hazing requires them to prove an injury, which theyâ€™re going to have a tough time with,â€ he predicted.
State law says first-degree hazing occurs when a perpetrator intentionally or recklessly causes a physical injury â€œin the course of another personâ€™s initiation into or affiliation with any organization.â€
Second-degree hazing is similar, except that the conduct need only cause â€œa substantial risk of physical injury.â€
The defense said the felony charges were dropped because the prosecution would have had to prove that the assailants used foreign objects to penetrate the backside of the three alleged victims, and medical evidence was lacking.
Forcible touching â€œwould more accurately reflect what occurred on that bus,â€ Zucco said.
The law defines it as using force to touch â€œthe sexual or other intimate parts of another person for the purpose of degrading or abusing [that] person, or for the purpose of gratifying the [perpetratorâ€™s] sexual desire.â€
Zucco said, â€œThis is not in any way a reflection that less serious conduct occurred. . . . Itâ€™s not like new facts were brought to our attention.â€
The charges are slightly different for each defendant, which Zucco said reflected the number of alleged victims each interacted with. The 18-year-old faces three counts each of forcible touching and first-and second- degree hazing, plus a count of endangering the welfare of a child left over from the original allegations.
Both 16-year-olds face a single touching count, but one of them has two counts of each hazing charge, and the other only one count of each hazing charge.
Shelby and Vona sought to have orders of protection altered so the 16-year-olds can return to school if their suspensions, in effect since the incident, are lifted following a superintendentâ€™s hearing. Zucco opposed that, and Berger said heâ€™d wait until the school actually acts, if it does.
The team coaches who were on the bus, charged with child endangerment, are due to return to court Sept. 25.