Adolescent offender, W. H., moves for an order seeking removal of this matter to Family Court. The People oppose. W.H. is a sixteen-year old adolescent offender indicted in a felony youth complaint (FYC-700**-19) with two counts of criminal possession of a weapon in the second degree, (Penal Law §265-03 [1b] and [3]), in connection with an alleged incident that all occurred on or about April 29, 2019. Defendant, W. H. was arrested on or about April 29, 2019 and was arraigned in the Queens Supreme Court — Youth Part (QAP) on April 30, 2019. On April 30, 2019, the People served notice pursuant to CPL §190.50 and reciprocal Grand Jury notice was given by defendant, along with the waiver of his rights under CPL §§170.70, 180.80, 190.80, and rights to a speedy trial. Pursuant to CPL §722.23, the case was adjourned to May 6, 2019, for the six-day review to determine removal. At the six-day review hearing, neither side called any witnesses. Each counsel presented arguments to the Court based on the allegations in the felony youth complaint. Neither side contested that the case did not involve a sex offense or an allegation that the defendant caused substantial physical injury in furtherance of the offense. The only issue was whether defendant “displayed a firearm or deadly weapon”. This Court, having reviewed the felony youth complaint, as well as the hearing presentations of counsel, concluded the People had established the display of a firearm or deadly weapon, to wit: a loaded silver twenty-five caliber (.25) semiautomatic pistol, by a preponderance of the evidence. Accordingly, on May 6, 2019, removal to Family Court was denied, as the People proved by a preponderance of evidence that the defendant “displayed a firearm”, and the case was adjourned to June 27, 2019 for Grand Jury action. On May 21, 2019, the People filed notice of intent to present this matter to the Grand Jury on May 29, 2019. The People’s notice included an affidavit of service by mail dated May 21, 2019 and defense counsel provided a copy of a metered envelope with a USPS stamp date of May 22, 2019 and a Legal Aid Society receipt stamp of May 28, 2019. On May 30, 2019, the instant matter was presented to the Grand Jury and the defendant was indicted. On June 12, 2019, defendant filed a motion seeking to dismiss the indictment and a decision was rendered on June 27, 2019 denying dismissal. On June 27, 2019, defense counsel filed the current motion seeking an order to remove defendant’s case to Family Court, pursuant to CPL §722.23. The People oppose, and in the alternative, move to prevent removal on “extraordinary circumstances” grounds. The “Raise the Age” legislation has distinct subsections for juvenile and adolescent defendants. CPL §722.22 applies to juvenile defendants and allows a defendant to directly seek removal to Family Court. Conversely, an adolescent defendant is within the purview of CPL §722.23, which does not set forth language allowing a defendant to directly seek removal. Pursuant to CPL §722.23 [4], “where an adolescent offender charged with a felony not covered by CPL §722.23[1], the Youth Part Judge must schedule an appearance no later than six calendar days after arraignment, upon notice to both parties, for review of the accusatory instrument, upon notice to both parties for review of the accusatory instrument to determine whether any of three factors exist to support retention of the matter in the Youth Part. The district attorney must show by a preponderance of evidence that: (i) “significant physical injury” was caused by the accused to a non-participant in the offense; or (ii) the accused displayed a firearm, shotgun, rifle or deadly weapon in furtherance of such offense; or (iii) the accused unlawfully engaged in sexual intercourse, oral or anal sexual conduct or sexual contact as defined in Article 130 of the Penal law. If the district attorney does not meet that burden or if the charges are reduced to a non-violent felony, the above presumption in favor of removal, absent extraordinary circumstances, applies. The accused may waive the review of the accusatory instrument and opportunity for removal where the waiver is made “knowingly, voluntarily and in open court, in the presence of and with the approval of his or her counsel and the court.” CPL §722.24[4]. Therefore, since the statute does not set forth a basis for a defense motion for removal in violent felony adolescent matters, this motion is deemed a motion to reargue. The branch of the motion to reargue is granted. Upon reargument, the motion is denied and the original decision denying removal to Family Court is adhered to. Defendant’s motion fails to purport any new facts for this Court’s consideration. Defense counsel maintains that the court should have removed the matter to Family Court. Specifically, defense counsel argues that the complainant fails to allege that the defendant displayed a firearm in furtherance of such offense, as defined by the statute, case law, and standard jury charges. Defendant contends the factual allegations stating that the “deponent observed the defendant holding what appeared to be a silver firearm” are insufficient to support the court’s finding, that the People established by a preponderance of the evidence that the defendant displayed a firearm in furtherance of such offense as set forth in CPL §722.23[2][c][ii]. Counsel maintains that had this court applied the analysis set forth by the Court of Appeals in People v. Baskerville, 60 NY2d 374 [1983], as well as the “display” analysis in People v. Lopez, 73 NY2d 214 [1989], this court would have found that the People failed to meet their burden. Defendant’s reliance on People v. Baskerville, supra, and People v. Lopez, supra, is misplaced and unavailing. In People v. Baskerville, supra, the Court of Appeals, in a post-trial appeal, was called to consider the validity of a trial court’s jury charge regarding the element of “display” in a Robbery in the first-degree trial. “The [Baskerville] trial judge charged, over objection, that defendant could not be convicted of Robbery in the first degree, unless the jury found that he had displayed what appeared to be a firearm but that ‘it is sufficient…if the victim is made to believe the object to be such a weapon or if the defendant holds or wraps the object in such a way as to create the impression that he is holding a pistol, revolver or other firearm.” Id at 380 emphasis added. Upon review, the Court held the charge was proper. Specifically, the court held that a “display of anything that appears to be [a firearm] though held inside a coat or otherwise obscured is covered by sections PL §§160.10 and 160.15.” However, to ensure a fair and objective review when considering “what appears to be a firearm”, the court established an objective 2-prong test to determine, regardless of the object’s true nature, whether a defendant “displayed” a firearm or “what appears to be a firearm.” The first prong requires a finding that the defendant consciously displayed something that could reasonably be perceived as a firearm with the intent of compelling an owner of property to deliver it up or for the purpose of preventing or overcoming resistance to take. The second prong requires that “the display must actually be witnessed in some manner by the victim. (Baskerville at 381). In People v. Lopez, also a post-trial appeal, the Court of Appeals reviewed the issue of whether the evidence was sufficient to prove that the defendants, in this two case decision, displayed what appears to be a firearm, sufficiently to support the charge of Robbery in the first degree. The Court of Appeals, in Lopez, stated that to satisfy the display element of robbery in the first degree, which “focuses on the fearful impression made on the victim…[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display.” (Id at 220-21). Therefore, pursuant to Lopez, “[a]ll that is required is that the defendant, by his actions, consciously manifest the presence of an object to the victim in such a way that the victim reasonably perceives that the defendant has a gun.” (Id at 222). The Baskerville and Lopez, supra, Courts examined the Penal law “display” and “what appears to be” language for the charge of Robbery in the first degree. In both Baskerville and Lopez, the Court examined the sufficiency, based on a reasonable doubt burden of proof, to support the post-trial charge, when the evidence and circumstances dealt with “what appeared to be a firearm…”. However, unlike the Penal Law inclusive language allowing prosecution for Robbery in the first degree for “what appears to be a firearm…or deadly weapon”, the legislature under CPL §722.23[2][c][ii] uses unequivocal language requiring an actual “display of a firearm or deadly weapon” to avoid removal. (See, People v. D.G.; 2019 NY Slip 50947U, 04/4/2019 [2019 Sup. Ct., Kings County] and People v. M.M., 63, Misc 3d 772, [Sup. Ct., Nassau County 2019]). Therefore, when considering the issue of “display” in the context of CPL §722.23[2][c][ii], we are not called, as the courts in People v. Baskerville or People v. Lopez, supra, to determine legal sufficiency beyond a reasonable doubt, but rather are called to consider actual circumstances that rise to a level warranting a removal denial of an adolescent offender to Family Court by a preponderance of the evidence. Unlike, Baskerville and Lopez, supra, herein the People’s burden of proof is a “preponderance of the evidence” standard. “The phrase preponderance of the evidence refers to the quality of evidence, its weight, and the effect that it has on…[the] minds…[of the finders of facts].” (PJI 1:60). To prevail by a preponderance of evidence, the party with the burden of proof must establish evidence that appears to the finder of facts as more nearly representing what happened than the evidence opposed to it. (see, PJI 1:60). Generally, in removal matters pursuant to CPL §722.23[2][c][ii], proof of a “display” is satisfied where the circumstances support a finding that a firearm or deadly weapon was actually displayed. (see, People v. A.T., 2019 WL 722871 [Sup. Ct. Erie County, 1/24/2019][Where the BB gun displayed was recovered, the Court denied removal to family court finding the People met their burden pursuant to CPL §722.23, and holding that a BB gun is a deadly weapon]; [People v. L.M., 62 Misc. 3d 1227[A] [Sup. Ct., Nassau County 2019][Court held the People satisfied their burden establishing a display, where the A.O. possessed a loaded pistol and fired 5 shots warranting the removal denial]; see converse, People v. M.M., 63, Misc 3d 772, [Sup. Ct., Nassau County 2019] [Court held the People failed to establish their "display" burden, where AO was alleged only to have pointed or gestured that he possessed a gun, but no gun was recovered.]; see also, People v. D.G., 2019 NY Slip 50947U, 04/4/2019 [2019 Sup. Ct., Kings County] [After a 6-day review, court held that for the People to meet their burden, pursuant to CPL 722.23[2][c], they were required to set forth evidence showing that what was actually displayed, was in fact a firearm or deadly weapon. Id at *4]. As stated, the defendant is charged with two counts criminal possession of a weapon in the second degree under Penal Law sections subsections [1-b] and [3]. Herein, the complaint alleges, in sum, that the defendant was observed by the deponent, Police Officer Douglas Sheeler, to have possessed a shiny silver object, which defendant tried to conceal in his jacket as he ran from the deponent. It is further alleged, that upon defendant’s arrest a loaded silver twenty-five caliber (.25) semi-automatic pistol was recovered from inside the defendant’s jacket. As the defendant has not challenged or provided proof to contradict the alleged display and recovery of a loaded silver twenty-five caliber (.25) semi-automatic pistol, this Court again finds, pursuant to CPL §722.23[2][c][ii]), that the People have proven by a preponderance of the evidence that the defendant displayed a firearm in furtherance of such crime, to wit: criminal possession of a weapon, pursuant to PL 265.03[3]. (see, People v. A. T., supra; People v. L.M., supra; People v. M.M., supra; see also, People v. D.G., supra). Again, upon a review of the motion and court file, I find that the alleged circumstances presented, which include the observation and recovery of a firearm by the police officer, meet the definition of “display”, pursuant to CPL §722.23[2][c][ii], sufficient to support that the defendant displayed a firearm or deadly weapon. Therefore, this Court finds that the People have proven, by a preponderance of the evidence, a clear basis for retaining the instant matter in the Youth Part pursuant to CPL §722.23[2], and the matter will remain in criminal court. Accordingly, Defendant’s motion to reargue is denied in its entirety. This constitutes the decision, opinion, and order of this Court.
