A man arrested for his role in a gun battle that left an 11-year-old bystander severely injured is facing another felony charge.
An Erie County grand jury voted to add the charge of first degree assault to the weapons possession previously filed against Detavion Magee, who was arraigned in court Thursday morning.
Magee, 21, was walking on Humason Avenue on June 29 when he allegedly became engaged in a gunfight with an occupant of a passing car. That person was using a long gun and one bullet hit Magee, who took cover behind a parked car. Another bullet from the long gun struck a child who was trying to get his younger siblings to safety at a nearby house.
Juan Rodriguez, then 11, was hit in the head and severely injured. He still is partially paralyzed and his head wound continues to heal.
Magee is not suspected of firing the round that hit Juan, but that doesn’t matter, Acting District Attorney Michael J. Flaherty Jr. said.
“It’s a matter of accessorial liability,” Flaherty explained. “We believe he was a willing participant in the gun battle that injured the boy.”
Magee left Buffalo after the incident and was arrested in Erie, Pa., where he was staying with relatives.
However, his attorney, Brian Parker, said that Magee was not trying to flee from the police.
“He was actually a victim himself that day. He was shot.,” Parker said. “He was trying not to become a victim. These same people had shot him once before.”
Parker questioned prosecutors’ allegations that Magee, who has no previous arrests, is associated with a gang, which led to the shooting.
“Just because he lives in a neighborhood doesn’t mean he’s part of a gang,” Parker said.
Flaherty said it was “irrelevant” what the motive was to engage in a gunfight in a residential neighborhood while children were playing in nearby yards. He said far too often it is innocent bystanders who are injured or killed when the shots are fired.
Parker said he plans to take the case to trial. Meanwhile, Judge Sheila A. DiTullio denied bail for Magee.