AMENDED DECISION AND ORDER The Adolescent Offender in this action, along with adult co-defendants, has been charged with three counts of Attempted Gang Assault in the Third Degree in violation of Penal Law §110.00/§120.07, a C Felony; three counts of Assault in the Second Degree in violation of Penal Law §120.05(2), a D Felony; four counts of Intimidating a Victim or Witness in the Third Degree in violation of §215.15(2), an E felony; one count of Criminal Mischief in the Third Degree in violation of Penal Law §145.05(2), an E felony; and four counts of Criminal Possession of a Weapon in the Fourth Degree, in violation of Penal Law §265.01(2), an A misdemeanor.1THE RAISE-THE-AGE LEGISLATIONIn 2017, the New York State Legislature passed and the Governor signed into law Raise-the-Age (“RTA”) legislation. The purpose of the RTA is to gradually increase the age of criminal responsibility in New York State. Prior to the passage of RTA, individuals as young as sixteen years old were routinely charged, tried, and punished as adult offenders. The RTA created a new class of offenders, the Adolescent Offender (“AO”). As of October 1, 2018, any sixteen-year-old charged with a crime in New York State is to be prosecuted as an AO. The presumption under the RTA is that most felony and all misdemeanor cases involving AO’s will be transferred to Family Court for hearing, fact-finding, and disposition instead of the Criminal Courts (CPL §722.23[1]). Initially, however, the AO’s case is heard in the Youth Part of a local superior court (CPL §722.10), in this case the Nassau County County Court.The Youth Part is required, within six days of the arraignment of an AO who is charged with a violent felony as defined in Penal Law §70.02, to review the accusatory instrument and any relevant facts to determine if a basis exists for retaining the matter in the Youth Part or if it should be removed to the Family Court (CPL §722.23[2][a], [b], and [c]). In undertaking this review, the Youth Part looks for the presence of any one of three factors in the accusatory instrument: (1) that the AO caused significant physical injury to a person other than a participant in the offense; (2) that the AO displayed a firearm, shotgun, rifle or deadly weapon as defined in the Penal Law in furtherance of such offense; or (3) the defendant unlawfully engaged in sexual intercourse, oral sexual contact, anal sexual contact, or sexual contact as defined in Penal Law §130.00 (CPL §722.23[2][c]. As part of the review process, both the People and the AO have the opportunity to be heard and present information relevant to the determination. The presence of one of the three factors warranting retention of the matter in the Youth Part must be proved by a preponderance of the evidence (CPL §722.23[2][b] and [c]).HEARDOn November 26, 2018, this Court gave the parties the opportunity to be heard and present any additional facts on the issue of whether the matter should be retained in the Youth Part pursuant to CPL §722.23(2)(b). At the hearing, the People called no witnesses and introduced no documents into evidence. The People read from the accusatory instrument, presented arguments based on the allegations in the accusatory instrument, and rested.On or about October 20, 2018, the Adolescent Offender (“AO”) was allegedly involved in a gang assault that occurred on the grounds of the Park Avenue School in New Cassel. During the assault, the AO was with a group of adult defendants who attacked three victims with two knives, a bat, a large stick, and machete. One victim was stabbed in the back six times and hit over the head with baseball bat. Another victim was hit in the arm with a baseball bat. A third victim had the machete swung at him. Whoever did so, missed.The AO and his adult co-defendants then subsequently allegedly attempted to further assault or intimidate the victims on or about November 2, 2018 at 1:45 a.m. Victim #2 alleges that the AO and his adult co-defendants approached his car, where he was sitting with the other two victims. The AO and his adult co-defendants were carrying a long stick, metal golf club and dark colored hammer. The People stated at the hearing that the AO carried the golf club. There was no corroborating information or details presented by the People at the hearing regarding this particular allegation. One of the gang yelled, “Yo, motherfucker, we know who you guys are!” The AO and his adult co-defendants then picked up large rocks and stones and threw them at the vehicle as it drove away, causing large dents, scratches, and chipping the paint.The People argued for retention of the case in the Youth Part because of the significant physical injury sustained by the victim who was stabbed six times in the back and neck and was also hit over the head with a baseball bat. As a result of being hit with the bat, the victim was treated in the hospital for Bell’s Palsy, a form of facial paralysis. The People expressly stated, however, that they were not arguing that the AO was the person, or one of the people, who stabbed the victim or hit him with the baseball bat. The People conceded at the hearing that the AO did not possess or display a deadly weapon. Neither does the accusatory instrument allege that the AO stabbed the victim or wielded the baseball bat that struck the victim and the People proffered no information alleging that the AO was the perpetrator. The People argued that because this was a gang assault, and because there was at least some evidence that the AO and his co-defendants were members of the gang called MS-13, the AO’s conduct meets the definition of accessory liability or liability based on the fact that the AO and his co-defendants were “acting as one body, one unit,” and are therefore responsible for each other’s actions.ContentionsSimilarly, Defense Counsel did not call any witnesses nor proffer any evidence at the hearing. Counsel argued that the case should be removed to Family Court because the People did not satisfy their burden of proof for the case to remain in the Youth Part. Counsel contended that there was no allegation that his client directly attacked the complainant or that his client possessed any of the weapons allegedly used. Counsel further stated that in the absence of specific allegations his client should not be punished alongside or in the same manner as the adults more he allegedly was with. Counsel noted that the RTA was passed to benefit accused wrongdoers precisely like his client and that he should be adjudicated appropriately by having the case removed to the Family Court.CONCLUSIONS OF LAWAs noted, the presumption of the RTA legislation is that cases involving AO’s will be removed to Family Court for adjudication. There are, however, specific exceptions to this rule. CPL §722.23(2) (a) through (c) sets forth the initial circumstances under which the Youth Part may elect to retain an AO case instead of removing it to Family Court. For an AO’s case to be adjudicated in the Youth Part instead of Family Court, the People must demonstrate, by a preponderance of the evidence, that the AO: (1) caused someone a significant physical injury, (2) displayed a deadly weapon, or (3) engaged in certain illegal sexual conduct (CPL §722.23[c]]This section of the CPL, however, does not define certain terms that are relevant to the Court’s determination on the question of retaining an AO case in the Youth Part. For example, left undefined by the Legislature is the nature and the scope of the parties’ opportunity to be heard; the meaning of “significant physical injury;” or what it means for the AO to have caused a significant physical injury. Indeed, the Legislature specifically contemplated, at least with regard to the definition of significant physical injury, that the Courts would fill the void left by the Legislature (see, New York State Assembly Record of Proceedings, April 8, 2017, ["Assembly Record"], P. 26). Considering the absence of clear guidance from the Legislature, the Court has looked to existing case law to define these terms.The Opportunity to Be HeardFirst, the Court notes that “there is surprisingly little authority on what constitutes the opportunity to be heard.” (People v. Meggie, 184 Misc. 2d 883 [Dist Ct Nassau County 2000]). The Court is persuaded, however, that the closest analogy for the statutorily required inquiry on the question of whether an AO case should be removed to Family Court is the opportunity to be heard on issuance of a temporary order of protection (“TOP”). The key difference is that while a TOP hearing, whether evidentiary or otherwise, is purely in the Court’s discretion, this hearing is mandatory. In any event, the initial opportunity to be heard on the question of removal is similar to a TOP hearing in that “both accusatory instruments and supporting depositions may be considered” and, as with most pretrial hearings, hearsay evidence may be admitted (Meggie, 184 Misc.2d at 886). In addition, like a TOP hearing, the initial consideration of the question of removal is, in essence, “a continuation of the bail hearing for purposes of considering a change in the conditions of bail or recognizance.” (Id).Preponderance of the Evidence StandardThe preponderance of the evidence standard is well-established in the law. It is evidence that must be of such weight so as “to produce a reasonable belief in the truth of the facts asserted” (58A NY Jur 2d Evidence and Witnesses §978).Significant Physical InjuryThe question of what constitutes a significant physical injury under the law is not well-defined. Existing case-law and the RTA’s Legislative history do, though, provide sufficient guidance to formulate a working definition. In the cases that consider the issue of whether an individual has suffered a significant physical injury, the courts have found a significant physical injury to exist where the injury arose from the use of a weapon (see People v. McLean, 128 AD3d 1094, 1095 [2d Dept 2015][fleeing victim who received a gunshot wound to his buttocks sustained a significant physical injury notwithstanding the fact that he was able to get away after being shot] and In the Matter of Angelica A., 56 Misc. 1220[A], *4, *8 [Bronx County Family Court 2017] [neglected child was found to have sustained significant physical injury following an attack by her father with a samurai sword, where she suffered swollen fingers and numerous quarter to half inch cuts and abrasions on her torso and ear); cf., (In the Matter of Pria J. L., 102 AD3d 576 [1st Dept 2013][child hit with belt in hind leg did not sustain significant physical injury]).Moreover, the State Assembly, in the debate prior to passage of the RTA legislation, noted that a “significant physical injury” would be “more serious than a bruise,” and would likely involve “bone fractures, injuries requiring surgery and injuries resulting in disfigurement,” i.e., injuries that were sustained through the use of a weapon (Assembly Record 26, 29).The Court notes that both the Legislature (Assembly Record, 48-49) and some commentators have stated that a definition of significant physical injury could be arrived at by comparison to the “serious injury” standard formulated in no-fault insurance law cases. The “serious injury” standard was adopted in No Fault cases to “weed out frivolous claims and limit recovery to significant injuries” (Toure v. Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350 [2002]). The Court, however, is not persuaded that this is the appropriate analogy or standard. Serious physical injuries are found, in no-fault cases, in two circumstances. The first is where an individual suffers the “permanent consequential limitation of use of a body organ or member.” The second is where an individual suffers the “significant limitation of use of a body function or system” (Toure, 98 NY2d at 353 [2002]). This standard is too stringent for the criminal law context. There can be no question that the victim who was stabbed six times and hit in the head with a baseball bat, causing him facial paralysis, sustained a significant physical injury. That the victim may fully recover from his wounds and not suffer any permanent effects from the injury should not mitigate its significance as a physical injury. The Court finds that the People have shown, by a preponderance of the evidence, that one of the victims suffered significant physical injury.The People’s sole argument for retaining this case in the Youth Part, however, is based on that victim’s significant physical injury and no other statutory factor. That a victim suffered a significant physical injury is not sufficient to retain this matter in the Youth Part. The People must demonstrate, by a preponderance of the evidence, that the AO caused the victim’s significant physical injury.The People conceded at the hearing that they were not arguing that the AO directly caused the victim’s injuries. Rather, the People argued that the AO’s liability arose from him acting in concert with the other members of the gang. The People argued that the MS-13 gang, which the AO is allegedly a part of, moves as “one body” or “one organism.” However, liability based on the AO “acting in concert” with others, while a basis for criminal liability, is precluded in the RTA’s legislative history as a factor for retaining the AO’s case in the Youth Part. In discussing the three factors for retention of an AO’s case in the Youth Part, the Assembly’s main sponsor of the Bill states that the three factor test “required the defendant to be the sole actor who causes the conduct outlined” (i.e., caused the significant physical injury, personally displayed the weapon or committed the sexual misconduct). The Legislative history states that this is consistent with the spirit of the law because “kids happen to get in trouble together all the time” and the Assembly did not want to punish an entire group for “one bad apple.” (Assembly Record, 51). Indeed, the Legislative history specifically states that “gang assault,” including, but not limited to “breaking store windows, breaking car windows, breaking apartment windows, beating up kids or tampering with witnesses” could be adjudicated in the Family Court (Assembly Record, 31). Based on this stated legislative intent to exclude gang activity from the three factors for retaining a case in the Youth Part, the People’s argument is unavailing. There is no evidence in the record to permit the Court to conclude, based on a reasonable belief from the felony complaint relied on by the People, that the AO was the sole actor who caused the victim’s significant physical injury.Accordingly, the People having failed to prove, by a preponderance of the evidence, a clear basis for retaining the instant matter in the Youth Part pursuant to CPL §722.23(2), the matter will proceed pursuant to CPL §722.23(1). This section permits the People to file a motion to prevent removal within thirty days of the arraignment based on extraordinary circumstances. The arraignment of this case having taken place on November 26, 2018, the matter will be removed to Family Court on December 26, 2018, absent a motion by the People before that date.This constitutes the Opinion, Decision and Order of the Court.Dated: December 11, 2018Mineola, New York
