Opinion
IND-00000-00/000
03-12-2019
The PEOPLE of the State of New York, v. L.M., Adolescent Offender.
Matthew L. Fleischer, Esq. is the Attorney for Defendant L.M., Hon. Madeline Singas, Nassau County District Attorney.
Matthew L. Fleischer, Esq. is the Attorney for Defendant L.M., Hon. Madeline Singas, Nassau County District Attorney.
The defendant in this action is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. On February 25, 2019, the AO, L.M. (D.O.B. 0/0/0000), was charged by way of indictment with one count of Attempted Murder in the Second Degree [Penal Law §§ 110/125.25 (1) ], a B Felony; one count of Criminal Use of a Firearm in the First Degree [ Penal Law § 265.09(1)(a) ], a B Felony; one count of Attempted Assault in the First Degree [Penal Law §§ 110/120.10(1) ], a C Felony; one count of Criminal Use of a Firearm in the Second Degree [ Penal Law § 265.08(1) ], a C Felony; one count of Assault in the Second Degree [ Penal Law § 120.05(2) ], a D Felony; two counts of Criminal Possession of a Weapon in the Second Degree [ Penal Law §§ 265.03(3) and 265.03(1)(b) ], a C Felony; one count of Criminal Possession of a Firearm [ Penal Law § 265.01-b ], an E Felony; and one count of Reckless Endangerment in the First Degree [ Penal Law § 120.25 ], a D Felony. The within Decision and Order is issued following the Court's review of the accusatory instrument, argument by counsel, and other relevant facts pursuant to CPL § 722.23(2)(b).
The indictment alleges, inter alia , that on or about December 30, 2018, in the County of Nassau, State of New York, the AO possessed a loaded pistol while attempting to cause the death of another person, and that the AO, with intent to cause serious physical injury to another person, did attempt to cause such injury to another person by means of a deadly weapon or a dangerous instrument, to wit: a loaded pistol. On February 25, 2019, the case was presented to the Grand Jury by direct presentment and the Court (Robbins, J.) issued an arrest warrant in the AO's name. On February 27, 2019, the AO appeared and was arraigned on the resultant indictment in the Youth Part of the County Court, Nassau. The Court placed bail on the AO, marked the arrest warrant as executed, and scheduled an appearance for March 5, 2019, the sixth day after the AO's arraignment, for the purpose of determining whether the case would be disqualified from potential removal to the Family Court pursuant to CPL § 722.23[2][c].
The defendant in this matter is classified as an "Adolescent Offender", which is a new category of defendants resulting from the recently enacted "Raise the Age" ("RTA") legislation, which was signed into law on April 10, 2017. Effective October 1, 2018, an AO is a person charged with a felony committed on or after October 1, 2018, when he or she was 16 years of age, or on or after October 1, 2019, when he or she was 17 years of age. (L. 2017, c. 59, Part WWW, § 106[b]; CPL 1.20[44] ). RTA mandated the creation of a "Youth Part" in the superior court of every county to process such AO's, and which is to be presided over by a Family Court judge. (L. 2017, c. 59, Part WWW; CPL § 722.10[1] ). The purpose of the 2017 RTA legislation was to raise the age of criminal liability and to provide a mechanism for the transfer to Family Court of many of those defendants who are within the newly-added AO category. (McKinney's Sentence Charts, Chart VIII "Adolescent & Juvenile Offenders", 2018).
CPL § 722.23 governs the removal of AO cases from the Youth Part to the Family Court and provides that, with limited exception, AO matters are to be automatically removed to the Family Court unless, within thirty days of the defendant's arraignment, the People move to prevent removal of the action. ( CPL § 722.23[1][a] ). A different procedure applies where the AO has been charged with a violent felony, such as Attempted Murder in the Second Degree, Criminal Use of a Firearm in the First Degree, and Attempted Assault in the First Degree, the charges at issue in this case. Under CPL § 722.23[2][a], upon the arraignment of an AO charged with a violent felony, the Youth Part judge shall schedule an appearance no later than six calendar days from the arraignment for reviewing the accusatory instrument and determining whether the matter will remain in Youth Part or will proceed toward automatic removal to the Family Court as provided for under CPL § 722.23(1)(a).
At that sixth-day appearance, the Court is required to review the accusatory instrument and "any other relevant facts" to determine whether the People prove, "by a preponderance of the evidence", one or more of the following three factors "as set forth in the accusatory instrument:
(i) the defendant caused significant physical injury to a person other than a participant in the offense"; or
(ii) the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense; or
(iii) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual conduct as defined in section 130.00 of the penal law."
( CPL § 722.23[2][c] ). Both parties may be heard and submit information relevant to the Court's determination. ( CPL § 722.23[2][b] ). If the People satisfy their burden, then the case is disqualified from proceeding towards automatic removal to the Family Court provided for under CPL § 722.23[1][a].
The Court's review of the Assembly's Record of Proceedings reveals that the legislators' rationale for the sixth-day appearance and the Court's review of the accusatory instrument was that not all felonies defined by the Penal Law as "violent" for plea and sentencing purposes necessarily involve a violent act [for example, burglary of a dwelling, PL § 140.25(2) ]. (Assembly, Record of Proceedings, April 8, 2017, p. 22). Thus, legislators intended that the requirement of finding one of three factors would ensure that "only those cases [of] the truly violent felons would stay in the criminal part, and those kids who were not violent would be able to find their way to family court, where they not only could get superior services, but would be able to get better outcomes for their lives not only with the services that were employed, but by not receiving a criminal record at the end of all this so that they could change their life around". (Assembly, Record of Proceedings, April 8, 2017, p. 21).
SIXTH-DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT
On March 5, 2019, the sixth day after arraignment, the Court held an appearance for the purposes of determining whether the matter would remain in the Youth Part pursuant to CPL § 722.23(2)(c). At that appearance (hearing), the People did not call any witnesses and did not introduce any documents into evidence. In addition to reading allegations from the indictment, they also asserted additional hearsay-based facts, including by reading portions of subpoenaed medical records. They presented arguments based on the indictment and the foregoing additional facts and rested following a brief rebuttal to the defense counsel's argument.
FACTUAL ALLEGATIONS
It is alleged that on or about December 30, 2018, in Nassau County, New York, the AO attempted to cause the death of another person; that he possessed a loaded pistol while attempting to cause such death; that he, with the intent to cause serious physical injury to another person, attempted to cause such injury to another person by means of a loaded pistol; and that with the intent to cause physical injury to another person, he caused such physical injury to another person by means of a loaded pistol.
Based on additional hearsay facts provided by the People at the sixth-day appearance (hearing), the AO allegedly discharged the loaded pistol and fired five shots, with one bullet landing in the complaining witness's abdomen. It is further alleged that the bullet remains lodged in the complaining witness's abdomen. The People read into the record portions of subpoenaed medical records, which stated that the complaining witness sustained a gunshot wound to the soft tissue of the abdominal wall with a retained bullet.
THE PEOPLE'S CONTENTIONS
The People argued that based on the indictment and additional hearsay facts, including subpoenaed medial records, the case should remain in the Youth Part based on the presence of, at minimum, the second factor, i.e. defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense. The People argued that their evidence went "beyond" the "display" element in the second factor, because in this case the AO discharged the weapon, a loaded pistol, and fired five shots, with one bullet landing in the complaining witness's abdomen.
The People further argued that although the matter should be retained in the Youth Part based on the presence of the second factor alone, that the case should also be retained in the Youth Part based on the presence of the first factor, in that the AO caused a "significant injury" to the complaining witness. The People stated that the AO was the principal actor responsible for such injury, as he fired the shots from the gun which caused the complaining witness to sustain the "significant injury".
DEFENSE COUNSEL'S CONTENTIONS
Defense counsel did not call any witnesses or proffer any documentary evidence in rebuttal to the People's presentation. Counsel for the AO argued that the People did not meet their burden as their presentation was based on hearsay and there had not been any judicial review of the Grand Jury minutes. Counsel further argued that the People did not present any substantive or evidential proof that there had been any kind of injury, as the indictment accused the AO of "attempting" to cause serious injury, but no one knows the extent of any injury caused by the AO. Defense counsel further argued that, with respect to the charges regarding the AO's use and possession of a firearm, there had been no indication that the weapon was tested for operability. Defense counsel argued that the People's presentation was just a restatement of the statute and concluded that the case should be removed to the Family Court.
CONCLUSIONS OF LAW
As stated above, the purpose of the sixth-day appearance under CPL 722.23[2] is for the Court to review the accusatory instrument and "other relevant facts" to determine whether the People proved, by a preponderance of the evidence as set forth in the accusatory instrument, the presence of one or more of three factors that will disqualify the AO's case from proceeding toward removal to the Family Court; including, as relevant here, that the AO "displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense" ( CPL § 722.23[2][c][ii] ). The statute provides that both parties may be heard and submit information relevant to the determination ( CPL § 722.23[2][b] ).
While the statute does not specify the nature and scope of the parties' opportunity to be heard at such appearance, the Court agrees with Justice Norman St. George's analysis in People v. B.H. , 62 Misc 3d 735 [Co. Ct. Nassau County 2018], analogizing the opportunity to be heard in the sixth-day appearance to the opportunity to be heard on the issuance of a temporary order of protection ("TOP"), including that in both instances the Court may consider "both accusatory instruments and supporting depositions" and "as with most pretrial hearings, hearsay evidence may be admitted". ( People v. B.H. , supra , 62 Misc 3d at 739-740 [citing to People v. Meggie , 184 Misc 2d 883, 712 N.Y.S.2d 316 [Dist. Ct. Nassau County 2000] ; see also People v. Hughes , 59 NY2d 523, 547 [1983] [ ["By analogy, we observe that hearsay testimony is admissible at pretrial hearings with respect to various issues, e.g., to prove probable cause"] ).
The well-established preponderance of the evidence standard requires evidence that is sufficient to "produce a reasonable belief in the truth of the facts asserted". ( 58A NY Jur 2d Evidence and Witnesses § 978 ).
In this case, the court finds that the People satisfied their burden of proving "by a preponderance of the evidence" that, "as set forth in the accusatory instrument", "the defendant displayed a firearm or deadly weapon as defined in the penal law in furtherance of such offense". ( CPL § 722.23[2][c](ii) ; Penal Law § 10.00[12] "Deadly Weapon "; Penal Law § 265.00[3] "Firearm "). Considering the language in the accusatory instrument, together with the additional facts provided at the sixth-day appearance, including, inter alia , that the AO possessed and fired five shots from a loaded pistol, and that one bullet from the five shots struck the complaining witness and remains lodged in his or her abdomen, the Court finds that the People pled and proved "by a preponderance of the evidence", that the AO displayed a firearm and/or "dangerous weapon" in furtherance of the offense for which he stands accused.
The Court is not persuaded to find otherwise by defense counsel's argument that the People failed to satisfy their burden based on a lack of operability report for the subject firearm and that there has not yet been an evaluation of the Grand Jury minutes. CPL § 722.23(c) provides that the purpose of the sixth-day appearance is for a review of the "accusatory instrument and any other relevant facts" to determine whether the district attorney proved "as set forth in the accusatory instrument" that, inter alia , defendant displayed a firearm or deadly weapon in furtherance of such offense. ( CPL § 722.23[c] ). While the statute provides that at the sixth-day appearance, "both parties may be heard", it is silent with respect to the scope of that opportunity to be heard. ( CPL § 722.23[b] ). Nothing in CPL § 722.23(b) requires that the sixth-day appearance include any testimonial evidence or even, as required on a motion to prevent removal of the action "allegations of sworn fact based upon personal knowledge of the affiant". ( CPL § 722.23[1][b] ). Moreover, because the statute states that the purpose of the sixth-day appearance is for the Court's review of the "accusatory instrument", there is no basis to find that the nature of the proceeding differs pre- and post-indictment.
While the People and defense counsel presented facts and arguments relating to a second factor, i.e., whether the AO also "caused significant physical injury to" the complaining witness, CPL § 722.23(2)(c) only requires the presence of one factor for the case to be retained in the Youth Part. The Court need not address the "significant injury" factor at this time.
As the People have satisfied their burden under CPL § 722.23(2)(c), the matter will be retained in the Youth Part and will not proceed in accordance with CPL 722.23(1). The Youth Part will retain this case for all future proceedings.
This constitutes the opinion, decision and order of this Court.