Opinion
08-02-2021
The People of the State of New York, v. V.A.M., Adolescent Offender.
N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County By: Taryn, Shechter, Esq. Counsel for Adolescent Offender V.M. Hon. Joyce A. Smith, Acting Nassau County District Attorney, By: Joan Owhe, Esq.
N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County By: Taryn, Shechter, Esq.
Counsel for Adolescent Offender V.M. Hon. Joyce A. Smith, Acting Nassau County District Attorney, By: Joan Owhe, Esq.
Conrad D. Singer, J.
The Adolescent Offender ("AO") in this matter is charged with one count of Attempted Assault in the First Degree (Penal Law §§ 110.00/120.10[1]); one count of Assault in the Second Degree (Penal Law § 120.05[2]); one count of Criminal Mischief in the Third Degree (Penal Law § 145.05[2]); one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]); and three counts of Endangering the Welfare of a Child (Penal Law § 260.10[1]). The within Decision and Order is issued after the Court's review of the accusatory instrument, arguments by counsel, documents received into evidence and other relevant facts pursuant to CPL § 722.23(2)(b).
The charges against the AO arise from an incident alleged to have occurred on July 18, 2021 at approximately 1:30 AM at a location in H., Nassau County, New York. The AO was arrested on July 18, 2021 and arraigned on July 19, 2021. On July 22, 2021, the Court conducted its statutory review of the accusatory instrument pursuant to CPL § 722.23(2).
Under CPL §722.23(2)(c), the AO's case must proceed towards being removed to the Family Court unless the Court finds during the sixth-day appearance that the People prove, by a preponderance of the evidence, the existence of one or more aggravating factors. Such factors include, as relevant in this case, that: "[i] the defendant caused significant physical injury to a person other than a participant in the offense". (CPL § 722.23[2][c][i]). "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., 115 A.D.3d 854, 854 [2d Dept. 2014]; People v. Giuca, 33 N.Y.3d 462, 486 [2019] [ in dissent ]).
In determining whether the People have satisfied their burden under CPL § 722.23(2)(c), the Court may consider the accusatory instrument, any supporting depositions, as well as hearsay evidence. (People v. B.H., 62 Misc.3d 735, 739-740 [Nassau County Ct 2018]; People v. J.W., 63 Misc.3d 1210 [A] [Sup Ct Kings County 2019]; People v. Y.L., 64 Misc.3d 664 [Monroe County Ct 2019]; see also, CPL § 722.23[2][b]).
SIXTH
DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT
At the sixth-day appearance, the People relied upon the allegations set forth in the Felony Complaint, offered into evidence photographs depicting the victim's injuries, and asserted additional hearsay-based information. The People contended that this case should be retained in the Youth Part because the AO caused the victim, who is his girlfriend and the mother of his 10-month-old child, to sustain significant physical injury when he slashed/stabbed her with a kitchen knife multiple times in the presence of his child, his 11-year-old sister and his 14-year-old brother.
Defense counsel argued in opposition to the People's presentation that the People failed to satisfy their burden of proving, by a preponderance of the evidence, that the AO caused the victim to sustain "significant physical injury". Defense counsel argued that "significant physical injury" requires aggravating factors that are not present in this case, such as bone fractures and/or injuries that require surgery. Defense counsel further argued that the People did not present any evidence showing that the victim required any after care, further treatment or experienced any impairment past the date that she was injured.
FINDINGS OF FACT
It is alleged in the Felony Complaint that at about 1:30 AM on July 18, 2021, the AO was involved in an argument with the 15-year-old victim while they were at his home at 350 Washington St., No.B14 in H., Nassau County, New York. It is further alleged that the victim is the AO's girlfriend and the mother of his 10-month-old daughter, and that the AO's daughter, as well as his 11-year-old sister and 14-year-old brother, were present during the subject incident. It is further alleged that the AO intentionally broke the victim's phone by forcefully throwing it against his bedroom wall, causing the screen to shatter. The AO allegedly assaulted the victim by repeatedly slashing her with a large kitchen knife about her left leg, her left arm, and the right side of her chest, causing multiple lacerations and puncture wounds, and that he did this in the presence of his daughter and his two siblings. It is further alleged that the victim's injuries caused her substantial pain and required numerous stitches to control the bleeding.
At the sixth day appearance the People further alleged that the AO stabbed/slashed the victim seven times- five times in her left leg, once in her left arm, and once under her breast- while the victim was huddled into a ball on the floor to protect herself. The People further alleged that the AO's conduct caused the victim to sustain deep gaping wounds, and that seven sutures were required to close the wounds. Five photographs were entered into evidence on consent (People's Exhibit No. 1), which depict the victim's injuries while she lay in the hospital following the incident.
LEGAL CONCLUSIONS
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 aggravating statutory factors which disqualify the AO's case from proceeding toward removal to the Family Court; including, as relevant here, that: "[i] the defendant caused significant physical injury to a person other than a participant in the offense". (CPL §722.23[2][c][i]). Both parties may be heard and submit information relevant to the Court's determination. (CPL §722.23[2][b]).
As the term "significant physical injury" is not statutorily defined under CPL § 722.23, the Court is tasked with ascertaining the "legislative intent" and construing CPL § 722.23 to effectuate that intent. (People v. Roberts, 31 N.Y.3d 406, 418 [2018]). Having referred to the "dictionary definition" of "significant" as a "useful guidepost" for the "ordinary" and "commonly understood" meaning of the phrase "significant physical injury", and having referred to the legislative history for the "Raise the Age" ["RTA"] legislation as a further aid in construing the meaning of the phrase , the Court finds that the legislators contemplated that the courts would define the phrase "significant physical injury", and that they intended the definition of the phrase to "fall somewhere in between" a "physical injury" and a "serious physical injury", both of which are phrases defined elsewhere in the Penal Law .
See People v. Andujar, 30 N.Y.3d 160, 163 [2017])
People v. Andujar, 30 N.Y.3d at 166.
"Physical injury" is defined as "impairment of physical condition or substantial pain" [Penal Law § 10.00(9)]; "Serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ".
Legislators debating the RTA bill indicated that they expected "aggravating factors" to accompany "significant physical injury", including "bone fractures, injuries requiring surgery and injuries that result in disfigurement". (Assembly Record, dated April 8, 2017 ["Assembly Record"], p. 26). "Significant physical injury" was elsewhere summarized as being "something more serious than a bruise, but less serious than a disfigurement". (Assembly Record, p. 27). The legislators further advised that in order to qualify as "significant physical injury", the injury "must have features and results that go[] significantly beyond those of physical injury". (Assembly Record, p. 49).
This Court has on prior occasions found that a knife-inflicted injury or injuries constituted "significant physical injury" [ see People v. K.F., 67 Misc.3d 607 [Nassau County Ct 2020]; and People v. J.A., 66 Misc.3d 1226 [A] [Nassau County Ct 2020]). Having compared the features of the victim's injury in this case, to the injuries in those previous cases where "significant injury" was found and having also compared the features of the victim's injuries in this case with those of knife wounds in cases decided in other courts , the Court is constrained to find that the People failed to establish that the victim in this case sustained a "significant physical injury". The victim in this case is reported to have needed seven sutures total to close her multiple wounds. However, the People proffered no evidence that the victim required extended treatment or hospitalization beyond the date of the incident. While they allege that the victim sustained "substantial pain", the Court notes that "substantial pain" is an element of "physical injury" and that the legislators intended "significant physical injury" to have features and results that "go significantly beyond those of physical injury". (Assembly Record, p. 49).
See People v. Brown, 95 A.D.3d 1229 [2d Dept. 2012] [penetrative wound of approximately one inch caused by stabbing and where victim was required to undergo laparoscopic surgery and reported pain level of "7" on scale of "1 to 10" constituted "physical injury"] and People v. Williams, 301 A.D.2d 669 [2d Dept 2003] [victim's hand being cut with knife and requiring victim to receive multiple stitches to close the wound and preventing the victim from using the hand or returning to work for several weeks and causing him to experience pain in his hand for several months thereafter constituted "physical injury"]; see also People v. Rudenko, 151 A.D.3d 1084 [2d Dept 2017] [victim sustained "serious physical injury" where he sustained two knife wounds, including a deep stab wound to the left of the anterior chest wall about three inches from his heart, and developed a hematoma in the muscle of his chest, and was required to undergo surgery under general anesthesia and where medical expert testified that, if the hematoma had been left untreated the victim could have died ]).
While the Court finds the circumstances surrounding the AO's alleged assault on the victim to be highly concerning, including that he assaulted his girlfriend and the mother of his child while she huddled on the ground in an effort to protect herself, and that the alleged assault took place in front of the AO's infant child and younger siblings, the Court's inquiry is limited to the injuries sustained by the victim and, in this case, the Court finds that the People have failed to establish that the victim sustained a "significant physical injury".
As the People have failed to satisfy their burden under CPL § 722.23(2)(c), their application to disqualify the AO's case from removal to the Family Court is denied at this time, and it is ordered that the action shall proceed toward removal to the Family Court in accordance with subdivision one of CPL §722.23. Absent the People filing a motion opposing removal based on Extraordinary Circumstances, the AO's case must be removed to the Family Court on or before August 18, 2021 (30 days after the AO was arraigned in the Youth Part).
This constitutes the opinion, decision and order of this Court.