BUFFALO, N.Y. -- He was one of two people shot June 29 on Humason Avenue, and now Detavion Magee is facing a first degree assault charge relating to the incident.
"He's accused of being a willing participant in a gunfight which led to the serious physical injury of the 11-year-old boy, Juan," said Michael Flaherty, D-Acting Erie County District Attorney.
Juan Rodriguez, who is now 12, was hit in the head by a bullet as he was helping his siblings get inside their home during the shooting.
"Miraculously, he is now in a rehab situation. He's out of the hospital but for rehab, he has to wear a helmet at all times to protect his brain because they've had to leave part of his skull open, and he has to re-learn some very basic tasks, but he's a true survivor," said Christopher Belling, an Assistant Erie County District Attorney.
Belling says the DA's Office believes Magee, 21, is a member of a gang, and a rival gang was shooting at him.
Brian Parker, Magee's attorney, says his client isn't in a gang, and was just walking down the street when the incident started.
"There were two cars that he noticed following and passing him in the time proceeding up to the shooting. He was fired at, he was actually hit, he was hiding behind another vehicle that was parked at one point, and the DA's proof is going to show that my client was not the person that shot the 11-year-old," said Parker.
Flaherty says it doesn't matter who fired the shot, referring to a legal theory called "transferred intent."
"If a person intends to harm somebody with a gun by shooting at him, misses and hits somebody else, he is just as liable as if he hit his intended target," said Flaherty. "In addition to that, if we can prove you acted in concert with somebody else to accomplish an aim, in this case, hurt somebody, you are just as liable as the other person."
Parker stresses Magee was also a victim, and feared for his life after the shooting.
"This was not the first time he was shot by these same individuals. There was another incident between them the Christmas of 2014 as well."
However, Parker says this was Magee's first arrest. He pleaded not guilty to the assault charge Thursday. In November, he pleaded not guilty to his initial charge, criminal possession of a weapon.
Magee has been remanded and is due back in court January 12.
As for the other individuals involved in the shooting, Flaherty says the investigation remains open.