DECISION The Defendant is charged as an Adolescent Offender (“AO”) on a Felony Youth Complaint with, Attempted Assault in the First Degree [PL §110/120.10(1)], a C Felony and, 2 counts of Assault in the Second Degree [PL§§120.05(1) and (2)], both D Felonies. The AO is also charged with, Assault in the Third Degree [PL §120.00(1)]; Menacing in the Second Degree [PL §120.14(1)]; and Criminal Possession of a Weapon in the Fourth Degree [PL §265.01(2)], all three are A Misdemeanors. He is further charged with, Attempted Assault in the Third Degree [PL §110/120.00(1)] and Menacing in the Third Degree [PL §120.15], which are both B Misdemeanors, as well as, Harassment in the Second Degree [PL §240.26(1)], a violation.The AO was arrested on March 20, 2019, and was arraigned in the Youth Part on March 21, 2019, pursuant to CPL §722.21(1). At the arraignment, the People stated their intention not to consent to remove the matter to Family Court due to the serious nature of the charges, and the allegations that the complainant sustained significant physical injuries. Notices were served and, after oral argument, bail was set. The matter was then adjourned to March 26, 2019, for a three-fold purpose: (1) for the Court to review to the accusatory instrument pursuant to CPL §722.23(2)(a); (2) a Removal Hearing pursuant to CPL §722.23(2)(b); and (3) for Grand Jury action pursuant to CPL §180.80.FACTUAL ALLEGATIONSThe felony complaint alleges that on or about March 01, 2019, at approximately 09:30 p.m., while in the County of Kings, the Defendant did stab the Informant multiple times about the back and one time about the thigh with a knife. The felony complaint further alleges that the above actions caused the Informant to suffer three stab wounds to the back, one stab wound to the thigh, to be admitted to a hospital, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.REVIEW of ACCUSATORY INSTRUMENT/REMOVAL HEARINGOn March 26, 2019, the People informed the Court that there was no Grand Jury action at that time, and the AO was released pursuant to CPL §180.80. Since the AO is charged with having committed a violent felony, as defined in section §70.02 of the Penal Law, the Court, thereafter, held a Hearing for the purpose of determining whether the matter should be removed to Family Court pursuant to CPL §722.23(2)(b).The People argue that because the complainant herein sustained a significant physical injury, three stab wounds to the back and one stab wound to the thigh, the matter should not be removed to Family Court. During the People’s presentation, the Court noted that the accusatory instrument, standing alone, was insufficient to substantiate a finding that the victim suffered a significant physical injury. There was no description as to the depth or length of the wounds, nor was there any indication of bleeding, bruising, contusions, or any other fact that would lead a finder of fact that the victim sustained a significant physical injury. The People thereafter proffered a photograph of the injuries sustained by the complainant. They also provided further relevant facts that were missing from the accusatory instrument. The People stated that two of the puncture wounds completely penetrated the skin. And that upon information, the complainant was admitted to Brookdale Hospital for three days and suffered bleeding to the chest cavity as a result of one of the stab wounds (Removal Hearing Transcript, pg. 3, lines 11-23).Although the Defense conceded that the photograph appeared to show penetration of the skin and bleeding, they argued that the photo, in and of itself, was not determinative of whether the injuries suffered by the complainant constitutes significant physical injury (Removal Hearing Transcript, pg. 4, lines 8-13). The Defense further questioned the basis of the People’s knowledge as to the complainant’s injuries, stating, “we simply don’t know where that information comes from and how many layers of hearsay are involved in that allegation.” (Removal Hearing Transcript, pg. 5, lines 20-22). The People stated that the hospital failed to comply with the Grand Jury Subpoena and refused to expedite the medical records. And, due to the time limits imposed by the six-day rule, the People had to rely upon the information of the deponent who was the arresting detective. And, although the detective was not made available for the Hearing, it was the People’s contention that there was no additional information that the detective would have provided, other than to corroborate what had already been stated (Removal Hearing Transcript, pg. 6, lines 6-16). The Court notes that the AO did not testify.After hearing testimony from the People, submission of one photograph, and oral argument, the Court adjourned the matter for Decision.CONCLUSIONS OF LAWPursuant to CPL §722.23, for Adolescent Offenders, all eligible matters shall be removed to Family Court after arraignment, unless: 1) the DA brings a motion to prevent transfer and the Court finds that offense should not be removed because of extraordinary circumstances; or, 2) the Youth is charged with a violent felony offense and the People prove, 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, shot gun, 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.In the matter at hand, the People contend that the complainant herein suffered a significant physical injury as a result of the AO stabbing him five times, four in the back, and once in the thigh. They further argue that the complainant suffered bleeding in the chest cavity which caused him to be hospitalized for three days. The Defense counters that the term, significant physical injury, is undefined in the statute, and that it would be something more than serious physical injury. And therefore, the injuries sustained by the complainant herein, would fail to meet such a high standard.The New York State Legislature, when contemplating raising the age of criminal culpability for 16 and 17-year-old youth, it was with the purpose and general idea that those young people, who are charged with a crime, may be treated in a more age appropriate manner. That the changes implemented would reflect the evidence that the current system had not been effective in deterring and preventing future crime, while maintaining a mechanism that youth, on a case by case basis, may be tried in adult criminal court when the circumstances warranted (see, https://www.nysenate.gov/legislation/bills/2017/s4121). The guidelines that the courts must follow are set forth in Article 722 of the Criminal Procedure Law. However, as is the case here, the Legislature and the text, falls short, of defining, what would constitute a significant physical injury. The Court notes that although other Youth Part jurisdictions in the State have already contemplated this issue, this remains a case of “first impression” here in Kings County.What the Court has been able to surmise from reading the Decisions from my learned colleagues, and its own review of the RTA legislation, is, that these are the type of decisions that would rarely come up. The felony charges herein, Attempted Assault in the First Degree and Assault in the Second Degree each need a finding of “serious physical injury” in order to be substantiated. However, in contrast, there need only be a finding of mere “physical injury” to satisfy the misdemeanor charge of Assault in the Third Degree.Article 10 of the NYS Penal Law defines “physical injury” as an impairment of physical condition or substantial pain. Whereas, “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 (PL §10.00[9] & [10]). Here, the NYS Legislature purposefully carved out a different criteria for the courts when it said the injury sustained must be a “significant physical injury” however, whether by purpose or omission, stayed silent as to the definition of “significant”. Clearly, the Legislature intended for a “significant injury” to be something more than mere “physical injury”, but also, something less than, “serious physical injury”. On the Assembly floor, the Assembly chief sponsor stated that the Legislature “compromised” and agreed that “in order to get a bill done, they would use the terminology ‘significant physical injury’, which is not defined in the Penal Law, but would include major aggravating factors…” it’d have to be something more serious than a bruise, but less serious than a disfigurement.” (see, New York State Assembly Record of Proceedings, April 8, 2017, [Assembly record], at 26-27).There are few cases where the courts have found “significant physical injury”. A Bronx Family Court found that a child who sustained a deep cut and several quarter to half inch cuts and abrasions, other cuts and scratches visible behind her ear to include bruising and swelling, a swollen ring finger, as well as a superficial scratch on the right side of her torso as a result of being attacked with a samurai sword was found to have sustained a significant physical injury (In the Matter of Angelica A., 56 Misc. 1220 [A][Family Court Bronx County 2017]). Contrast that with a matter on appeal to the Appellate Division Second Department, whereby the defendant was charged with Attempted Murder, the court, in restating the facts of the case, stated that “the defendant taking a “shooting stance” and firing in his direction…[o]ne of the shots struck Gammons in the buttocks, causing significant physical injury, but he managed to get away” (People v. McLean, 128 AD3d 1094 [2d Dept. 2015]). Here, unlike Matter of Angelica A., it is less clear what the extent of the injuries sustained by the complainant was, other than the gunshot wound to the buttocks. It would seem however, that where the courts have found there to be a “significant physical injury”, that standard would be less than that used when confronted with “serious physical injury”.In the Miriam/Webster dictionary, “serious” as it relates to an injury, is defined as having important or dangerous possible consequences. “Significant” is defined as, having or likely to have influence or effect, and also, of a noticeably or measurably large amount.Here, the People’s burden is measured by a preponderance of the evidence. A preponderance of the evidence in the words of the Criminal Jury Instructions, “means the greater part of the believable and reliable evidence, not in terms of the number of witnesses or the length of time to present the evidence, but in terms of its quality, weight and convincing effect. In Pattern Jury Instructions, to establish a fact by a preponderance of the evidence means to prove that something is more likely true than not true. In other words, a preponderance of the evidence in the case means such evidence when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proven is more likely true than not true.The Court may rely upon a review of the accusatory instrument, as well as any other relevant facts as presented by the parties when making its determination for removal purposes (CPL §722.24(2)[b]). Also, as with most pretrial hearings, hearsay evidence is admissible to establish any material fact (see, People v. Mitchell, 124 AD3d 912, 2 NYS3d 207 [App Div2d, 2015]. Where the court makes a determination that the action shall not proceed in accordance with subdivision one of this section, such determination shall be made in writing or on the record and shall include findings of fact and, to the extent practicable, conclusions of law (CPL §722.24(2)[d]).Based on the testimony and photograph presented, that the complainant was stabbed five times, four in the back and once in the thigh and suffered bleeding in the chest cavity which caused him to be hospitalized for three days, this Court finds that the People have met their burden, by a preponderance of the evidence, that the complainant suffered a “significant physical injury” as contemplated by the NYS Legislature. Therefore, without the consent of the People, this matter cannot be removed to Family Court (CPL §722.24(2)[e]).For all the above stated reasons, Defendant’s motion to remove is denied.This constitutes the Decision and Order of the Court.Dated: April 2, 2019Kings County, New York
