Town Justice George R. Berger on Tuesday dismissed some of the charges against two of three Wilson High School baseball players in a hazing case, but enough charges still remain to take the case to trial.
All three defendants still face some Class A misdemeanor counts, which carry a maximum sentence of a year in jail. However, all three would be granted youthful offender status automatically if convicted, which is why The Buffalo News is not publishing their names.
Berger ruled that the prosecution had failed to demonstrate enough evidence of physical injury against two of the three junior varsity players.
Berger thus threw out two first-degree hazing charges against a 19-year-old who has graduated from Wilson since the April 17 incident on a baseball team bus ride home from a game in Niagara Falls. To convict on first-degree hazing, prosecutors must prove that physical injury occurred.
However, that defendant still faces one first-degree hazing count; three counts each of second-degree hazing and forcible touching; and one count of endangering the welfare of a child.
Berger tossed out one of the two first-degree hazing charges against one of the 17-year-old co-defendants. That boy still faces single counts of first- and second-degree hazing and forcible touching.
"I would have liked to see the other [first-degree hazing charge] dismissed. We could have resolved this [Tuesday]," said Kevin P. Shelby, attorney for that defendant.
None of the charges against the third defendant, also 17, were dismissed. Represented by P. Andrew Vona, he faces single counts of first- and second-degree hazing and forcible touching.
"They really, in my opinion, overcharged the case," said Mark E. Guglielmi, attorney for the 19-year-old.
Assistant District Attorney Robert A. Zucco didn't disagree. "The dismissals were of charges that would be very difficult to sustain at trial," he said. "With respect to two of the complainants, [evidence of injury] was insufficient. If [Berger] hadn't dismissed them now, he probably would have at trial. With the other [complainant], there's an issue of fact."
Berger also ruled that the statement the 19-year-old gave to state police would not be admissible at his trial because the boy's mother had hired Guglielmi and she let the officers know an attorney was in the picture. Police are not allowed to question suspects who have hired lawyers without the lawyer present.
In the disallowed statement, "He did not admit to the forcible touching or any of the more serious charges," Guglielmi said.
However, Berger let stand the statements the two 17-year-olds made to police. Their attorneys argued the boys' parents should have been allowed in the interview room; Berger disagreed.
The defendants will return to court March 10 to either schedule trial dates or complete a plea bargain.
If there are trials, state law requires that they occur before Berger alone, not a jury, in a closed courtroom, because the defendants have no prior convictions and face mandatory youthful offender status if convicted.