Opinion
No. FYC-70056-24/001
02-27-2024
The People of the State of New York, v. K.M., Defendant.
James Faucher, Esq. Schenectady County District Attorney's Office Counsel for the People Mark Juda, Esq. Counsel for Defendant
Unpublished Opinion
James Faucher, Esq.
Schenectady County
District Attorney's Office
Counsel for the People
Mark Juda, Esq.
Counsel for Defendant
Mark W. Blanchfield, J.
The defendant herein, K.M. (hereinafter, the "A.O."), is charged as an adolescent offender in the Youth Part of the County Court of Schenectady County. Specifically, he has been charged with two felonies: Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]), as well as the misdemeanor Menacing in the Third Degree (Penal Law § 120.15). Because Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]) are listed as a violent felony offenses under section 70.02 of the Penal Law, the Court is obligated to conduct a so-called "sixth day" hearing following arraignment for the purpose of reviewing the accusatory instrument(s) to determine if one or more aggravating factors exist which would prevent the case from being removed to the Family Court (see CPL 722.23 [2] [a]). The "sixth day" hearing occurred on February 1, 2024, at which time the Court conducted the mandated inquiry.
The statute does not specify the order of procedure for the "sixth day" hearing, but this Court will adopt the practice of most of the courts of this state, which is to consider the accusatory instruments, any supporting depositions, materials, and live witness testimony, even if it contains hearsay, as well as arguments of counsel. As noted in the statute itself, the People's burden must be satisfied by a preponderance of the evidence (see CPL 722.23 [2] [c]).
Because the statute appears to confine the inquiry in the "sixth day" hearing to whether an aggravating factor exists with respect to "violent felony" offenses only, this Court will limit its consideration to whether the relevant factors exist in connection with the charges of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]) (pertaining to the entire handgun) or Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]) (pertaining solely to the unlawful 21-round magazine).
SIXTH DAY HEARING FOR REVIEW OF ACCUSATORY INSTRUMENT
At the sixth day hearing on this matter, the People argued that the A.O.'s case should be disqualified from removal to the Family Court because the A.O. "displayed a firearm... in furtherance of such offense" (CPL 722.23 [2] [c] [ii]). More specifically, the People argued that the A.O. displayed a tan Sig Sauer P320 M18 9mm handgun, with a 21-round magazine attached, in two separate incidents on January 20, 2024 in Schenectady, New York, both of which were captured on store security cameras. In the first incident, the A.O. is alleged to have initiated a verbal dispute with a worker at an establishment known as the IQ Deli while holding a handgun in his jacket pocket; he then walked around the side of the counter and threatened to shoot said worker while pointing the handgun toward him through the cloth of the jacket. In an incident several hours later, the A.O. allegedly walked into the nearby Stop&Go Deli, proceeded to an unpopulated aisle therein, removed said firearm from his jacket pocket and hid it under a box. The A.O. then returned minutes later, reached under the box and placed the firearm under his jacket. Upon the A.O.'s exit from the second store, the police intervened and removed the firearm from under the A.O.'s jacket. Said firearm was found to be loaded and, upon later testing, also found to be fully operative. Due to its distinctive color and markings (which were apparent in the IQ Deli video footage) it appeared that the loaded, operable firearm recovered from the A.O. was the same firearm that the A.O. had pointed at the IQ Deli worker several hours earlier.
The People argued that both events involved displays of a firearm that were committed in furtherance of both of the felony Criminal Possession of a Weapon charges. The People offered the testimony of Detective Sean Solomon, Detective James Claus, and Detective Kristin Florell. The People also offered video footage from the IQ Deli purporting to show the A.O. threatening the store employee (People's Exhibits 1 & 2); several screenshot images from those videos (People's Exhibit 3); a signed affidavit from A.R., the owner of the IQ Deli who was working the counter on the relevant date (People's Exhibit 4); signed affidavits from several law enforcement witnesses (People's Exhibits 6-8); a "show up" identification report (People's Exhibit 5), a test fire report of a firearm recovered during the A.O.'s arrest (Exhibit 9); photographs of the firearm (People's Exhibit 10); a USB thumb drive containing video footage from the Stop&Go Deli purportedly depicting the A.O. removing a firearm from his jacket, hiding it in the store, and then retrieving it (People's Exhibit 11); and a DVD containing an audio and video recording of the A.O. and his mother in a Schenectady Police Department interview room (People's Exhibit 12). As all of said exhibits were deemed to be facially relevant to the inquiry herein and, having given defense counsel an opportunity to be heard, the Court received them into evidence for this proceeding only.
The People argued that, based on the exhibits and the accusatory instruments, a person matching the A.O.'s description was carrying a firearm in his jacket pocket in the IQ Deli on January 20, 2024, and threatened to shoot the counterman of said store while pointing the firearm through the cloth of the jacket. According to the People, the same person subsequently entered the Stop&Go Deli, removed the firearm from his jacket pocket, placed it under a box in the store, and exited the store. He then returned to the Stop&Go Deli a few minutes later and retrieved the handgun, placing it under his jacket. When the A.O. was arrested, police recovered a loaded, tan pistol with a 21-round magazine. After a "show up" identification, A.R. confirmed that the A.O. was wearing the same clothing in his store moments before, and he identified the A.O. as the person who had threatened him. The People further contended that, in a recorded conversation while inside the police station, the A.O. admitted that he had possessed a firearm and that he had attempted to hide it in a store.
Defense counsel did not offer any evidence at the hearing, but argued that the People failed to establish, by a preponderance of the evidence, that the A.O. displayed a firearm or deadly weapon. Defense counsel further urged that this is the type of case that the Legislature intended to be removed to Family Court.
FINDINGS OF FACT
A review of the relevant accusatory instruments indicate that the A.O. herein is charged with possessing a loaded "Tan Sig Sauer P320 M18 9mm semi-automatic firearm [with serial number] M18A027884" along with a "21 round magazine." The affidavit of A.R. states that the A.O. entered the IQ Deli on January 20, 2024 at approximately 10:15 a.m. and ordered a beef patty. When A.R. told the A.O. that he could not use "EBT" (a public assistance payment card) to pay for the item, the A.O. "got angry and asked if [A.R.] was trying to disrespect him." He then "came around the corner with his hand in his pocket very aggressively" and stated "don't make me shoot you." A.R. indicated that he was scared for his safety and the safety of other customers in the store. The People proffered surveillance video footage from the IQ Deli, which shows several persons present inside the store. The video further depicts a specific individual, who appears to be the A.O., wearing tan sweatpants, a tan hooded sweatshirt, and a gray jacket, pacing near the deli counter. The tan-colored magazine of a handgun appears to be protruding from his right-hand jacket pocket, and an enlarged image of the individual's pocket area shows a distinctive brand logo marking on the butt-end of said magazine. Detective Claus testified that, according to his experience and training, the individual exhibited behaviors consistent with carrying a concealed weapon, including touching the area where the weapon is located and holding his right arm still while swinging his left arm. According to the soundless video, the individual appears to speak to a counterman and show a card from across the deli counter. Shortly thereafter, while still speaking to the counterman, the individual walks around to the side of the deli counter and steps into the opening that leads behind the counter such that his entire body is visible to the counterman. At that point, the video shows the individual raising his right hand in his jacket pocket, at waist level, such that the outline of a handgun is visible through the cloth of the pocket. The individual then walks back around to the front of the counter. Later that day, A.R. identified the A.O. in a show up identification and indicated that he was the same person who appears on the video.
The People also proffered surveillance video from another location, the Stop&Go Deli, from approximately 2:15-2:50 p.m. on the same date (People's Exhibit 11). That video depicts the same individual, who appears to be the A.O., walk to the back of said store, remove what appears to be a handgun from his right jacket pocket, place it under a cardboard box on the floor of the store, and walk away. Approximately two minutes later, said video shows the same person as he returns, retrieves an object-presumably the handgun-from under said cardboard box, and then places it under his jacket on his left side. Video footage depicting the exterior of the Stop&Go Deli shows several police officers arrest the person identified as the A.O. right after he exits the store (People's Exhibit 11).
Affidavits from Officer William Balta (People's Exhibit 6) and Officer Colton Barber (People's Exhibit 8) confirm that, during the A.O.'s arrest on January 20, 2024, Officer Balta discovered a tan handgun "tucked into the inner pocket of [the A.O.'s] coat." Officer Balta then handed the weapon to Officer Barber, who secured the firearm until an Evidence Technician collected it. Detective James Claus, an Evidence Technician, testified that, on January 20, 2024, he was called to the station to process the Sig Sauer P320 M18 pistol. Photographs of the recovered handgun (People's Exhibit 10) depict a tan handgun with an extended magazine. The magazine is tan with a black mark and a distinctive Sig Sauer brand logo on the bottom. The still images from the IQ Deli store video (as enlarged on a screen in the courtroom) show the same tan color, black mark, and distinctive logo on the magazine protruding from the pocket of the person later identified as the A.O. A photograph of the handgun with the magazine removed indicates that the weapon was loaded with 21 rounds. Detective Claus's test fire report indicates that the handgun successfully fired using the ammunition in the magazine (People's Exhibit 9).
The People also proffered a recording of the A.O. and his mother in a police station interview room following the A.O.'s arrest (People's Exhibit 12). In the recording, the A.O. appears to be making a phone call, and can be heard stating, "I hid the pole in the store" while describing how police were approaching the store.Detective Kristin Florell testified that "pole" is a street term meaning a gun.
CONCLUSIONS OF LAW
For the purposes of the instant inquiry, the Court concludes that the People proved, by a preponderance of the evidence, that the A.O. displayed a firearm and/or a deadly weapon in furtherance of the offenses of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]) (pertaining to the entire handgun) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]) (pertaining solely to the 21-round magazine). "To establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred" (Matter of Beautisha B. [Racquirine A.], 115 A.D.3d 854, 854 [2d Dept 2014]) and, while the factual findings herein are consequently not binding on the ultimate trier of fact, they are sufficient to retain this matter in adult criminal court.
As a preliminary matter, the Court notes that Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]) are both violent felonies as defined in Penal Law § 70.02 and, thus, are subject to the "sixth day" review pursuant to CPL 722.23 (2). Notably, the statute excludes Controlled Substances Offenses, but does not carve out Criminal Possession of a Weapon offenses. While the oft-cited legislative "debate" regarding the Raise the Age bill did not expressly explain how the statute's framework would apply to Criminal Possession of a Weapon, an ongoing crime, it remains instructive (see Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"]). Such history reveals the legislative intent that adolescents' employment of an actual deadly weapon should render their crimes more heinous, such that they should be adjudicated in adult superior court (Assembly Record at 20 ["One of the tests would be whether or not a weapon was involved and in furtherance of the crime"]; see also id. at 51-52). Based on the language of the statute, as well as the legislative history, Criminal Possession of a Weapon offenses are clearly the types of violent felony that could remain in adult-level court, as long as the facts of the specific case satisfy other key provisions of the Raise the Age statute.
With respect to the entire, actual handgun in question herein, there is little question that it qualifies as a "deadly weapon" as defined by the Penal Law. As relevant here, the Penal Law defines "firearm" as "[a] any pistol or revolver" (Penal Law § 265.00 [3]) and "[d]eadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged" (id. § 10 [12]). Detective Claus's testimony and the test fire report indicate that the item recovered during the A.O.'s arrest was an operable, semi-automatic handgun which was loaded with 21 rounds. The evidence supports a conclusion that the recovered handgun is the same one that the A.O. possessed in both stores. The distinctive color and marking on the magazine are visible on the video from the IQ Deli, particularly when enlarged as occurred in the courtroom during the hearing herein. Video evidence from the Stop&Go Deli shows that, after endeavoring to conceal it under a box, the A.O. moved the handgun from his right-hand jacket pocket to underneath his left arm, where it was found upon his arrest. On the recording from the police station, the A.O. admitted to hiding the handgun in a store. Moreover, the sworn statements of Officers Balta and Barber, along with Detective Claus's sworn testimony, establish the chain of custody of the weapon once it was removed from the A.O.'s person.
Turning to the issue of whether the handgun in question was "displayed" in this case, the Court concludes that it was displayed in the IQ Deli on January 20, 2024. Because the term "display" is not statutorily defined, the court must give the term its "ordinary" and "commonly understood" meaning (People v Ocasio, 28 N.Y.3d 178, 181 [2016]; see also People v Andujar, 30 N.Y.3d 160, 163 [2017]). In doing so, the court may use dictionary definitions as "useful guideposts" (Ocasio, 28 N.Y.3d at 181; see People v M.S., 73 Misc.3d 405, 409 [Sup Ct, Nassau County 2021]). As relevant here, Merriam-Webster defines "display" as "to place or spread (something) for people to see"; "to make (an emotion, quality, skill, etc.) evident"; or "to exhibit conspicuously and usually in an ostentatious manner" (Merriam-Webster Online Dictionary, display [ https://www.merriam-webster.com/dictionary/display ]).
The evidence presented at the hearing showed that, on January 20, 2024 while in the IQ Deli in Schenectady, the A.O. initiated a verbal confrontation with A.R., a counterman there, while the two initially were separated by a chest-high deli counter. The A.O. then walked around to the side of the counter, away from the view of other customers, with the apparent purpose of making his entire body visible to said counterman. The A.O. then told the counterman (A.R.), "don't make me shoot you" while holding the handgun in his jacket pocket and raising it waist-high in the direction of the counterman. Although the surface of the handgun was largely obscured by the cloth of the A.O.'s jacket during the confrontation, the video evidence indicates that the A.O. purposely made the handgun evident to the counterman at the side of the counter, such that its outline was visible beneath the cloth when he pointed it toward the counterman. Moreover, the A.O. expressly threatened to shoot A.R.-making it clear to the victim that he was armed.
Though the A.O. was not charged with robbery, the case law regarding first-degree robbery is informative in defining "display" when the surface of the item in question is partially obscured. Although those cases discuss the part of that offense involving the display of "what appears to be" a firearm (Penal Law § 160.15 [4]), the "display" analysis is still relevant here, where the A.O. had an actual operable firearm. Those cases hold that defendants display what appears to be a firearm when they "conspicuously and consciously convey[ ] the impression" that they have a firearm (People v Lopez, 73 N.Y.2d 214, 222 [1989]). This includes holding a hand under clothing while telling the victim that they have a gun (see People v Smith, 29 N.Y.3d 91, 99-101 [2017]) or by gesturing with an object wrapped in a towel while verbally threatening the victim (see People v Baskerville, 60 N.Y.2d 374, 381 [1983]). In this instance, because the A.O. intentionally raised an actual firearm toward the counterman, such that its outline was visible through the cloth of his jacket, while verbally threatening to shoot the counterman, the A.O. did display the firearm within the meaning of CPL 722.23 (2) (c) (ii).
As to whether the A.O. displayed the firearm in furtherance of the two violent felony offenses charged herein, the Court concludes that, by a preponderance of the evidence, said display furthered the A.O.'s unlawful possession of both the handgun and the attached 21-round magazine. As noted above, the A.O. first initiated a verbal confrontation with A.R. at a point when the two were separated by a chest-high counter, with other persons in the store. By purposely walking around to the side of the counter so that said counterman could view the A.O.'s entire body, then by raising the handgun at waist level such that its outline was visible, the A.O. took positive steps to ensure that the counterman knew that he possessed a handgun. Moreover, by positioning himself and showing the handgun in such a way as to isolate the interaction from others in the store, the A.O. appeared to evince an intention to avoid a multi-person melee which could result in his loss of the handgun and its magazine. Furthermore, simply by holding onto the handgun and raising it, the A.O. ensured that he retained it and the attached magazine by preventing the items from either falling out of his pocket or being seized by A.R. during the verbal confrontation. Whether by emphasizing his control of the handgun toward the counterman, or by ensuring that the handgun and its magazine would not be seized by others in the course of an argument, the A.O.'s actions could be reasonably perceived as furthering his possession of the items on January 20, 2024 while at the IQ Deli, by a preponderance of the evidence.
In the absence of a specific statutory definition, other trial level courts have come to varying conclusions regarding what it means for a display to be done "in furtherance of" criminal possession of a weapon. Some courts have held that the People met their burden of proving that an A.O. displayed a firearm in furtherance of criminal possession of a weapon where an A.O. threatened a victim with a firearm (see People v M.S., 73 Misc.3d 405, 410 [Sup Ct, Nassau County 2021]) or merely held a firearm in the open in a public place (see People v W.H., NYLJ, Aug. 19, 2019 at 26 [Sup Ct, Queens County 2019]). At least one other court has applied a much narrower definition of "in furtherance of," concluding that, where an A.O. pointed a pistol at an individual on the street, the People failed to prove "that the alleged display was to ensure the firearm's retention or otherwise was made to advance or promote the alleged commission of the crime of attempted criminal possession of a weapon" (People v N.C. , 65 Misc.3d 996, 1003 [Sup Ct, Bronx County 2019]. As noted herein, this Court concludes that acts of display which visually emphasize control of a deadly weapon during the course of a dispute, and which also evince a purpose of keeping control of said deadly weapon to the exclusion of others, are circumstances that would be "in furtherance of" the possession of said weapon within the meaning of the statute.
With respect to the A.O.'s actions at the Stop&Go Deli, it is not as clear that the A.O. displayed the handgun in furtherance of the crimes of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [3]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]). The A.O.'s movement of the fully-exposed weapon into the open while endeavoring to hide it in, and then retrieve it from, a cardboard box in a back aisle arguably evinces an intention to further his possession of it. However, the store video does not clearly indicate that anyone was able to view the fully exposed handgun during its physical transfer, calling into question whether it was ever truly displayed. Because the Court concludes that the A.O. displayed a firearm in furtherance of the charged felonies while in the IQ Deli, it does not need to address whether he displayed a firearm in furtherance of those offenses in the Stop&Go Deli.
In consideration of the foregoing, the Court finds that the People met their burden of proving, by a preponderance of the evidence, that the A.O. "displayed a firearm... or deadly weapon... in furtherance of" the violent felony offenses with which he has been charged (CPL 722.23 [2] [c] [ii]). Accordingly, it is hereby
ADJUDGED that the People have satisfied their burden, for the limited purposes of CPL 722.23 (2) (c) (ii) of establishing by a preponderance of the evidence that the A.O. displayed a firearm in furtherance of the violent felony offenses of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [1] [b]) and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 [8]); and it is therefore
ORDERED that the People's application to prevent removal of this criminal action to the Family Court is GRANTED, and it is further
ORDERED that the entire present criminal action against the A.O. will proceed in the Youth Part of the County Court of Schenectady County.
This constitutes the Decision and Order of the Court.