DECISION and ORDER This defendant is charged as an Adolescent Offender (“AO”) in the Youth Part of the Westchester County Court with one count each of Murder in the Second Degree, a violation of section 125.25(1) of the Penal Law (“PL”) and Attempted Murder in the Second Degree, a violation of section 110/125.25(1) of the Penal Law, by way of a felony complaint. This decision and order is issued after a review of the accusatory instrument filed in the case pursuant to section 722.23(2) of the Criminal Procedure Law (“CPL”) held by this court on February 5, 2019.New York’s “Raise the Age” legislation became effective on October 1, 2018, and was created to “raise the age of adult criminal responsibility from sixteen to eighteen so that youth who are charged with a crime may be treated in a more age appropriate manner” (New York State Assembly Memorandum In Support of Legislation, A3668A, 2018). The new legislation takes into account scientific evidence indicating that children’s brains are not fully developed until after the age of eighteen and that as a result, “youths who engage in criminal conduct often do not have the same level of understanding of their actions as an adult” (id). Additionally, the research shows that “the penalties and longer sentences often imposed by adult criminal courts do not reduce the recidivism rate of youth who commit crimes, compared to similarly situated youth who are adjudicated in a juvenile court system” (id). It is evident from the statutory scheme that the legislature intended for only the most serious offenses alleged to have been committed by AO’s to be prosecuted in County Court and that any less serious offense should be presumed to be lawfully and appropriately handled in Family Court. It is under this rationale, and within the guidelines of CPL §722.23, that the court must determine the within application.Under the new legislation, any felony that is not a violent felony, as that is defined in PL §70.02, or a class A felony, other than those defined in Article 220 of the Penal Law, will be removed to Family Court some time after arraignment on the felony complaint, unless pursuant to section 722.23(1)(a) of the Criminal Procedure Law, the district attorney makes a motion to prevent removal of the action within thirty calendar days of the arraignment (CPL §722.23[1][a]). The motion must be made in writing and on notice to the defendant, who must be given the opportunity to reply. Finally, the court must deny the motion unless it finds that “extraordinary circumstances exist that should prevent the transfer of the action to family court” (CPL §722.23[1][d]).CPL §722.23 goes on to discuss how the Youth Part is to handle violent felonies and class A felonies, such as those contained in the felony complaint herein. Specifically, CPL §722.23(2)(a) requires that when an AO is accused of such a crime, “the court shall schedule an appearance no later than six calendar days from [the] arraignment for the purpose of reviewing the accusatory instrument” (CPL §722.23[2][a]). The purpose of this review is to determine whether the district attorney has shown “by a preponderance of the evidence one or more of the following 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 contact as defined in section 130.00 of the penal law” (CPL §722.33[2][c][i][ii][iii]). In making such a determination, “the court shall review the accusatory instrument and any other relevant facts” and “[b]oth parties may be heard and submit information relevant to the determination” (CPL 722.23[b]). Finally, in making its determination, the court must do so in writing. The court notes that nothing in CPL §722.23(2) requires that the proceeding to review the accusatory instrument include any testimonial evidence or sworn allegations of fact (compare CPL §722.23[1][b] (requires that a motion to prevent removal of an action in the youth part contain allegations of sworn fact based upon personal knowledge of the affiant)). As an issue of first impression for this court, with little to no caselaw to guide it, this court is left to make its determination based upon its own discretion and experience.In order to establish that the accusatory instrument filed in this case contains at least one of the three qualifying factors, the People relied upon the accusatory instrument itself, the face sheet of the autopsy report, and facts orally relayed to the court by the prosecutor. Turning first to the facts contained in the felony complaint signed by Detective Thomas Braig of the City of Yonkers Police Department, the People note that it charges one count of murder in the second degree, which includes the allegation that the AO caused the death of the deceased “by pointing a loaded handgun at the deceased and shooting the deceased with a loaded handgun in the torso” (Felony Complaint, Count One). Additionally, count two of the felony complaint alleges that the defendant shot an additional person with a loaded handgun in the hip and the foot “causing said person to receive extensive medical treatment for his injuries” (Felony Complaint, Count Two). The People argue that this language alone establishes that the accusatory instrument contains sufficient evidence that the defendant is accused of causing significant physical injury to a person other than a participant in the offense pursuant to subdivision i, and that the defendant displayed a firearm in furtherance of the offense pursuant to subdivision ii of CPL §722.23(2)(c).As additional support for their position, the People submitted to the court a copy of the face sheet of the autopsy report completed in the case. The document is dated January 31, 2019, signed by Deputy Medical Examiner, A. Milovanovic, M.D., and states that “[b]ased on an investigation and a postmortem examination (with) autopsy, the cause of death has been certified as: Bullet wound of chest involving heart, lung, stomach and spleen; internal bleeding…Homicide” (Autopsy Report, Face Sheet).Finally, the assistant district attorney represented to the court that she has interviewed an eyewitness to the AO’s criminal conduct. This witness advised the prosecutor that the witness observed the AO fire the gun at the decedent. Additionally, the prosecutor advised the court that clothes were recovered during the execution of a search warrant at the home of the AO. These clothes were tested for the presence of gunshot primer residue, which was detected on the cuffs of the clothing.The defense offered no relevant facts or information during the proceeding. Rather, the defense argued simply that the People failed to show by a preponderance of the evidence that one of the three factors outlined in CPL §722.23(2)(c) was committed by the AO.The court finds that the People have satisfied their burden in establishing that this matter should be retained in the Youth Part pursuant to CPL §722.23(2)(c)(i). Although “significant physical injury” is not defined within the statute, the allegation that the defendant actually caused the death of another person surely satisfies this factor. To be sure, it would defy logic to argue that causing the death of a person was not the serious criminal conduct contemplated by the legislature to warrant retention of the criminal case by the Youth Part.The People have established the second factor under CPL §722.23(2)(c)(ii), as well. The language contained in the felony complaint, combined with the conclusion of the medical examiner that the decedent died of a gunshot wound, and the presence of the gunshot primer residue on the clothing recovered from the AO’s home, all establish that the AO displayed a firearm in furtherance of the offense.For all of these reasons, the court finds that the matter is appropriately before the Youth Part of the Westchester County Court and thus, need not proceed in accordance with CPL §722.23(1). Therefore, the Youth Part will retain this case for any and all future proceedings.This constitutes the opinion, decision, and order of this Court.Dated: February 7, 2019White Plains, New York
