Judge keeps McKinley case out of Family Court

And county prosecutors are no longer specifically alleging the other 17-year-old charged in the case, who also faces an attempted murder charge, intentionally shot the 27-year-old school security guard attempting to break up the group altercation outside the school that afternoon.

Judge Kenneth Case ruled the District Attorney's Office met its legal burden to keep the criminal cases against both Rismay Tee and Kushal Tamang in Youth Part, where they would face stiffer punishment if found guilty than they would in Family Court.

Police and prosecutors have not released the suspects' names, but they were identified by name in open court Friday and on the publicly available court docket.

"It seems to me the burden of proof has been exceeded," Case said prior to announcing his formal ruling, in describing the grand jury indictment of both teens.

The Feb. 9 violence, which happened after school about 3:45 p.m. in a parking lot at McKinley, triggered a school lockdown and a manhunt for suspects.

Tamang, known by the nickname "Kush" and accused in the beating and stabbing, has been charged with second-degree attempted murder and first-degree assault. Tee, known by the nickname "Riz" and charged with the shooting, has been charged with second-degree attempted murder, second-degree weapons possession and second-degree assault.

Both remain held without bail.

Prosecutors have not said what Tamang – accused in the attack on the 14-year-old, which left him with 10 stab wounds – is specifically alleged to have done. District Attorney John Flynn has said there were "others involved" in the beating and stabbing, but has declined to specify how many.

The judge rejected the argument of Louis C. Mussari, Tamang's defense attorney, who said under the state's Raise the Age law, prosecutors were required to show by a preponderance of the evidence that his client caused serious physical injury to the 14-year-old.

According to Mussari, prosecutors have thus far offered no proof that his client had a knife or caused the victim serious physical injury.

Tamang told police he was involved in a fight, but denied having a weapon or stabbing the victim, Mussari said.

"This individual is not the individual who stabbed somebody," Mussari told the judge.

The judge ruled prosecutors met a higher burden – the standard of "reasonable cause" – by having him indicted.

Under the legal theory being used by prosecutors, known as accomplice liability, they don't have to specifically allege Tamang was the one who stabbed the victim, Flynn has said.

That standard is appropriate when trying to get a grand jury to indict, argued Mussari, the teen's defense attorney, but not when trying to keep a case from moving to Family Court. Accessorial liability is not specifically addressed in the provisions of New York's Raise the Age law, he said.

New York State raised the age of criminal responsibility from 16 to 18 over the span of a year, starting in October 2018.

The family of Sirgio Jeter, who suffered multiple punctured organs in the stabbing, has notified Buffalo Public Schools of intent to sue the district. The security guard, who was shot in the leg, was released from the hospital.

Prosecutors allege Tee fired the gun into a crowd of people, Flynn said. When he was initially arrested, he was accused of intentionally shooting the guard.

"I don't have to prove that he intentionally shot at the security guard; all I need to prove is that he shot at a group of kids and the security guard got hit," Flynn said. "I'm not saying it was accidental. I'm not saying it was not intentional."

Tee has not been charged with injuring a 13-year-old, who authorities previously said was grazed by a bullet. Flynn said Friday investigators haven't found enough evidence to prove beyond a reasonable doubt that the wound was caused by a grazing bullet, but noted the investigation continues.

Flynn said Friday investigators still have not yet found the weapon used in the stabbing or the gun used in the shooting.

The speed with which these two teens were indicted was unusual for cases that don't involve a homicide, Flynn said.

The teens are due back in court March 23.