Matter of Kareem E.: Pleading Second-Degree Riot Requires Facts Showing Five Participants Simultaneously Engaged in “Tumultuous and Violent Conduct”

1. Introduction

Matter of Kareem E. (2026 NY Slip Op 02014 [248 AD3d 1369] [3d Dept Apr. 2, 2026]) arose from a February 2024 incident in Schenectady County in which the respondent (born in 2009) was alleged to have engaged in a fight in/near a parking lot while others were present, ignored police commands, and physically resisted officers during arrest.

The County Attorney filed a juvenile delinquency petition under Family Court Act article 3 alleging acts that, if committed by an adult, would constitute:

  1. riot in the second degree (Penal Law § 240.05),
  2. attempted assault in the third degree, and
  3. resisting arrest (Penal Law § 205.30).

After a fact-finding hearing and disposition, Family Court adjudicated the respondent a juvenile delinquent and imposed one year of probation. On appeal, the key issues were (i) whether the petition was facially sufficient as to second-degree riot, and (ii) whether the fact-finding determinations on attempted assault and resisting arrest were supported—principally under a weight of the evidence review.

2. Summary of the Opinion

The Appellate Division, Third Department modified the order by dismissing the second-degree riot count as jurisdictionally defective, holding that the pleading did not allege facts establishing that the respondent and at least four other persons simultaneously engaged in “tumultuous and violent conduct.”

The Court otherwise affirmed, concluding that the determinations as to attempted assault in the third degree and resisting arrest were not against the weight of the evidence, relying on officer testimony and body-camera footage.

A partial dissent would have dismissed additional counts—finding the attempted assault determination against the weight of the evidence given justification concerns, and urging dismissal of resisting arrest in furtherance of justice under Family Ct Act § 315.2.

3. Analysis

3.1. Precedents Cited

Facial sufficiency in juvenile petitions; jurisdictional defects

  • Matter of Antwaine T., 23 NY3d 512 (2014): Supplies the governing standard—petitions are facially sufficient only if nonhearsay factual allegations establish, if true, every element of the offense and the respondent’s commission thereof. The Court used this as the foundational rule to evaluate the riot count.
  • Matter of Tashawn MM., 218 AD3d 906 (3d Dept 2023): Reinforces that the absence of factual allegations supporting each element is a nonwaivable jurisdictional defect reviewable for the first time on appeal. This enabled dismissal of the riot count even if not fully litigated below.
  • Matter of Savannah F., 232 AD3d 1100 (3d Dept 2024): Cited for the remedy—dismissal where pleading defects exist under Family Ct Act § 315.1.

What constitutes “tumultuous and violent conduct” for riot

  • People v Morales, 158 Misc 2d 443 (Crim Ct, NY County 1993): Defines “tumultuous and violent conduct” as substantially more than ordinary disturbance—“frightening mob behavior” and “terrorizing acts.” The Court used this definition to show that the pleaded facts (a fight plus others present/accompanying) did not reach the riot statute’s qualitative threshold.
  • Matter of Christopher M., 94 AD3d 1119 (2d Dept 2012): Supports the proposition that riot requires allegations demonstrating the statutory elements beyond a mere group presence; it bolstered the Third Department’s insistence on element-by-element factual pleading.
  • People v Michie, 52 Misc 3d 270 (Crim Ct, Bronx County 2016) (cited in a “compare” parenthetical): Used as a contrasting illustration that some group incidents may satisfy riot when the facts show the requisite collective, tumultuous conduct—highlighting that the defect here was factual pleading, not merely statutory interpretation.

Preservation and standards of appellate review in fact-finding

  • Matter of Angel ZZ., 220 AD3d 1097 (3d Dept 2023): Applied to hold the respondent’s legal sufficiency challenge on attempted assault unpreserved because the specific grounds argued on appeal were not raised in the trial motion to dismiss.
  • Matter of Lucas Y., 223 AD3d 1057 (3d Dept 2024), lv denied 41 NY3d 909 (2024): Provides the articulation of weight-of-the-evidence review in juvenile matters—neutral review with deference to Family Court’s credibility determinations.

Attempted assault; “physical injury”; attempt doctrine

  • People v Repanti, 24 NY3d 706 (2015): Sets the framework for attempted third-degree assault—conduct tending to effect assault with intent to cause physical injury. The Court used it to focus the inquiry on intent and proximity to causing “physical injury.”
  • People v Lendof-Gonzalez, 36 NY3d 87 (2020): Supplies the “dangerously close” concept in attempt analysis; the Court analogized repeated punches to the face/head/neck as coming dangerously close to causing “substantial pain.”
  • Matter of Dowayne H., 278 AD2d 706 (3d Dept 2000): Supports treating violent conduct that nearly causes “physical injury” as sufficient for attempt in juvenile adjudications.
  • People v Hall, 243 AD3d 1070 (3d Dept 2025) and People v Bonilla, 229 AD3d 850 (3d Dept 2024), lv denied 42 NY3d 1018 (2024): Cited to validate the Court’s weight-of-the-evidence conclusion despite evidentiary limitations (e.g., victim not identified/assessed for injury).

Resisting arrest; authorized arrest; probable cause

  • People v Hadlock, 218 AD3d 925 (3d Dept 2023), lv denied 40 NY3d 997 (2023): Reinforces the statutory elements of resisting arrest and the concept that the arrest must be authorized.
  • Matter of Kalexis R., 85 AD3d 927 (2d Dept 2011): Supports the proposition that observed conduct can supply probable cause for assault/attempted assault, making the arrest “authorized” for resisting arrest purposes.
  • People v Cox, 129 AD3d 1210 (3d Dept 2015), lv denied 26 NY3d 966 (2015) and People v Jones, 214 AD3d 1340 (4th Dept 2023), lv denied 39 NY3d 1155 (2023): Cited to support affirmance where video/testimony show physical noncompliance consistent with resisting arrest.

Dissent authorities: justification and “furtherance of justice” dismissal

  • Matter of Ganjel P., 131 AD3d 877 (1st Dept 2015) and Matter of Mondy E., 121 AD3d 785 (2d Dept 2014): Used by the dissent to argue that the proof did not negate justification and thus the attempted assault determination was against the weight of the evidence.
  • Matter of Kara M., 242 AD2d 630 (2d Dept 1997): Cited by the dissent to agree that resisting arrest was not against the weight of evidence, while still urging discretionary dismissal.
  • Matter of A. WW., 237 AD3d 1420 (3d Dept 2025) and Matter of Steven C., 93 AD3d 91 (2d Dept 2012): Support the dissent’s view that Family Ct Act § 315.2 permits dismissal in furtherance of justice based on a holistic assessment (seriousness, harm, circumstances, equities).
  • Matter of Rasean B., 7 AD3d 520 (2d Dept 2004), People v Hall, 195 AD3d 1574 (4th Dept 2021), lv denied 37 NY3d 1096 (2021), and People v Cooper BB., 229 AD3d 944 (3d Dept 2024), lv denied 42 NY3d 1019 (2024): Appear in the majority’s footnote to reinforce preservation rules for justification and to reject concessions belied by the record.

3.2. Legal Reasoning

(a) The riot count: “more than four people present” is not the statutory element

Penal Law § 240.05 requires proof that a person, “simultaneously with four or more other persons,” engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm. The petition alleged only that the respondent fought “with more than four people present,” and the supporting deposition said the respondent was “accompanied by” eight other individuals.

The Third Department treated this as an element-by-element pleading failure: presence or association does not equal simultaneous participation in tumultuous and violent conduct by at least five actors. By invoking People v Morales, the Court emphasized that riot is aimed at frightening, mob-like collective violence—not merely a fight occurring near other people. Because the petition failed to allege the necessary collective, simultaneous “tumultuous and violent” participation, the defect was jurisdictional under Matter of Antwaine T. and Matter of Tashawn MM., requiring dismissal of the riot count under Family Ct Act § 315.1.

(b) Attempted assault and resisting arrest: video-supported weight-of-evidence affirmance

On attempted assault, the Court first held the legal sufficiency challenge unpreserved (Matter of Angel ZZ.), then performed weight-of-evidence review under Matter of Lucas Y.. Despite the absence of an identified victim and proof of actual injury, the body-camera footage and testimony showed repeated punches to the face/head/neck by a larger respondent. That conduct was treated as “dangerously close” to causing “substantial pain,” supporting attempt liability under People v Repanti and People v Lendof-Gonzalez.

For resisting arrest, the Court reasoned that the officers had probable cause to arrest for assault/attempted assault, rendering the arrest “authorized,” and the footage showed the respondent pulling away and physically struggling as officers attempted to handcuff him. Deferring to Family Court’s credibility findings, the Court held the resisting arrest determination was not against the weight of the evidence.

(c) The dissent’s competing frame: justification and equity-based dismissal

The dissent would have treated the video’s depiction of the other participant swinging first (or at least swinging) as sufficient to place justification into issue, requiring petitioner to disprove it (Penal Law § 25.00 [1]; Penal Law § 35.15 [1]). On that view, petitioner’s proof did not show the respondent was the initial aggressor and did not negate justification, making the attempted assault finding against the weight of the evidence.

The dissent also urged dismissal of resisting arrest in furtherance of justice (Family Ct Act § 315.2), stressing the respondent’s youth, the modest level of resistance described, and the absence of proven injuries and operational disruption.

3.3. Impact

  • Charging discipline for Penal Law § 240.05 in Family Court: The decision makes clear that prosecutors must plead concrete, nonhearsay facts showing at least five participants simultaneously engaged in riot-level “tumultuous and violent conduct”—not merely that others were present, nearby, or “accompanying” the respondent.
  • Narrowing overbroad riot pleadings: For multi-person fights, the ruling pressures the state to differentiate between (i) a brawl involving multiple mutual combatants and (ii) “mob behavior” constituting riot, and to plead those distinctions with particularity.
  • Reinforced preservation risks for defense theories: The majority’s treatment (including its footnote) underscores that if justification/self-defense is not squarely raised in Family Court, appellate review may be limited—potentially shaping how defense counsel litigate fact-finding hearings.
  • Video evidence as weight-of-evidence anchor: The affirmance illustrates how body-camera footage can supply the “neutral light” foundation for weight review even where victim identity/injury proof is incomplete.
  • Continued debate over Family Ct Act § 315.2 discretion: The dissent highlights an alternative pathway—dismissal “in furtherance of justice”—that may be invoked more frequently in juvenile cases where culpability is technically established but equity considerations are strong.

4. Complex Concepts Simplified

  • Facial sufficiency (Family Ct Act § 315.1): The petition must contain nonhearsay facts that, if true, satisfy every element of the charged offense. If an element is missing, the court lacks jurisdiction over that count.
  • Jurisdictional defect (nonwaivable): Some pleading flaws are so fundamental that they can be raised for the first time on appeal; the parties cannot “waive” them by failing to object.
  • Second-degree riot (Penal Law § 240.05): Not just a fight with bystanders; it requires collective, simultaneous, riot-like conduct by at least five people, and a grave risk of public alarm.
  • Weight of the evidence vs. legal sufficiency: Legal sufficiency asks whether any rational factfinder could find the elements proven. Weight review is broader: the appellate court “weighs” proof in a neutral light and decides whether the verdict is supported, while deferring to the trial court’s credibility determinations.
  • Attempted assault (Penal Law § 110.00 + assault statutes): The state need not prove the victim was actually injured; it must prove intent to cause physical injury and conduct coming dangerously close to causing it.
  • Resisting arrest (Penal Law § 205.30): The arrest must be authorized (supported by probable cause), and the respondent must intentionally attempt to prevent the officer from effecting that arrest.
  • Justification/self-defense (Penal Law § 35.15; Penal Law § 25.00 [1]): If properly raised, the state must disprove justification beyond a reasonable doubt; disputes often focus on who was the initial aggressor and whether the force used was necessary.
  • Dismissal in furtherance of justice (Family Ct Act § 315.2): Even where proof supports a finding, Family Court (and, in limited settings, appellate courts) may dismiss based on a holistic assessment of fairness, seriousness, harm, and the respondent’s circumstances.

5. Conclusion

Matter of Kareem E. establishes a clear pleading boundary for juvenile delinquency petitions charging second-degree riot: alleging that “more than four people” were present, or that the respondent was “accompanied by” others, does not satisfy the statutory requirement that the respondent acted simultaneously with four or more other persons in “tumultuous and violent conduct.” The decision thereby curbs expansive riot charging in group-fight scenarios unless the petition pleads concrete facts showing collective riot behavior.

At the same time, the ruling illustrates the Third Department’s approach to appellate review of fact-finding determinations—enforcing preservation rules on legal sufficiency arguments, applying weight-of-evidence review with deference to credibility findings, and treating video evidence as highly probative. The dissent underscores continuing tensions in juvenile cases around justification and the equitable safety valve of dismissal in furtherance of justice.