People v. N.C.

DECISION AND ORDER   The issue before the Court is whether the People have proved by a preponderance of the evidence that the Adolescent Offender named above displayed a firearm “in furtherance of” a violent offense, such that the instant matter is not subject to the automatic removal provision of the newly-enacted “Raise the Age” statute. For the reasons set forth below, the Court concludes that the People have not met their burden. BACKGROUND The defendant, an Adolescent Offender, was arrested on July 19, 2019. On July 20, 2019, he was arraigned on a felony complaint charging him with Criminal Possession of a Firearm, and two related misdemeanors, under Docket No. FYC-70252/19, for an incident that allegedly occurred on July 19, 2019. On July 24, 2019, the defendant was rearrested. He was arraigned later that day on an additional felony complaint under Docket No. FYC-70265/19. Under this new docket, the defendant was charged with Attempted Murder in the Second Degree, and related charges, with respect to an incident that allegedly occurred at 6:41 p.m. on July 19, 2019, and Attempted Criminal Possession of a Weapon in the Second Degree, and related charges, with respect to an incident that allegedly occurred at 6:44 p.m. on July 19, 2019. The grand jury returned an indictment in connection with these matters, which was filed on August 23, 2019, under Indictment No. 70335-2019. In the indictment, the defendant has been charged with Attempted Murder in the Second Degree, and related charges, in connection with the 6:41 p.m. incident, and with Attempted Criminal Possession of a Weapon in the Second Degree, and related charges, with respect to the 6:44 p.m. incident. This Court held a “retention hearing” on July 29, 2019.¹ The defendant in this case was born in January 2003, and thus is properly treated as an Adolescent Offender. FINDINGS OF FACTS The People proffered the following facts at the retention hearing: In the accusatory instrument filed under Docket No. 70252/19, New York Police Department (“NYPD”) Detective Christopher Madden swore that on July 19, 2019, at approximately 4:44 p.m.,² in front of 2120 Ryer Avenue, Bronx County, New York, he observed the defendant remove a black firearm from his front shorts pocket and display the firearm by pointing it at an unknown male. The detective further alleged that he examined the firearm and found it to be a .380 caliber pistol. These allegations form the basis, in part, of the accusatory instrument filed under the second docket. In the accusatory instrument filed under Docket No. 70264/19, based in part on his personal observation and in part on viewing of video surveillance, Detective Madden swore to the following facts: On or about July 19, 2019, the defendant and two unapprehended individuals appeared to interact with each other on the northwest corner of East 182nd Street and Tiebout Avenue in the Bronx. Following this interaction, the defendant mounted his bicycle and stopped at the center of the same intersection. At about 6:41 p.m., one of the unapprehended individuals went to 2269 Tiebout Avenue, displayed a .380 caliber, semi-automatic pistol, and fired approximately seven shots in the direction of an individual. The individual was shot twice, once in the lower abdomen and once in the right forearm, and later removed to the hospital by ambulance. The shooter ran to the defendant, made a hand-to-hand exchange with the defendant, and then ran away. The defendant fled on his bicycle southbound on Tiebout Avenue and westbound on East 181st Street toward 2120 Ryer Avenue, which houses the NYPD 46th Precinct. Further, according to Detective Madden’s sworn statement in the second accusatory instrument, at about 6:44 p.m., the defendant was riding his bicycle in front of 2120 Ryer Avenue, when he removed a .380 caliber pistol from his shorts pocket and pointed it in the direction of an unknown individual before cocking the pistol’s hammer. The unknown individual then ran away.³ In addition to relying on the two accusatory instruments, the People orally proffered at the hearing that 2269 Tiebout is about a half a block away from the intersection of East 182nd Street and Tiebout Avenue and that that intersection is about three blocks away from the 46th Precinct station house. The People also proffered at the hearing a supplemental affidavit of Detective Madden, dated July 29, 2019. In his supplemental affidavit, Detective Madden stated that at about 6:44 p.m. on July 19, 2019, in front of 2120 Ryer Avenue, he observed the defendant remove a firearm from his right shorts pocket, and display the firearm, by pointing it in the direction of a third party and cocking the firearm. He then observed the defendant, holding the pistol, run behind a marked police car. The detective heard the metallic sound of a firearm hit the asphalt behind the police car, a sound the detective identified as indicating that the defendant had dropped the firearm. The defendant then continued running away. The detective went behind the police car where he had seen the defendant and recovered a Taurus model 738 .380 caliber pistol. Detective Madden vouchered the firearm under voucher/invoice number 2000890355, and sent it to the lab for ballistics and microscopic examination. In addition, at the scene of the 6:41 p.m. shooting, Detective Madden observed shell casings, which were vouchered by an officer of the Evidence Collection Team under voucher/invoice number 20008903224. Finally, the People proffered three lab reports, one attesting that the firearm vouchered under invoice number 2000890355 was operable, and a second attesting that the bullet fragments and cartridge cases vouchered under invoice number 20008903224 were identified as having been fired from the firearm vouchered under invoice number 2000890355.⁴ The defendant proffered no evidence. Based on the uncontroverted sworn evidence, the Court finds that the People have established the facts set forth above by a preponderance of the evidence. CONCLUSIONS OF LAW Criminal Procedure Law (“CPL”) §722.23 governs the circumstances under which cases from the Youth Part of the Supreme Court are removed to Family Court, and the attendant procedures. That section provides ordinarily for the automatic removal of cases to Family Court unless the People move, within 30 days of the date of the defendant’s initial arraignment, to prevent removal (CPL §722.23(1)(a)). However, where a defendant is charged with a violent felony, the Court must hold a hearing within six days of the date of the arraignment on the accusatory instrument. At this six-day retention hearing, the Court is to review the accusatory instrument and “any other relevant facts” to determine if the People have proved by a preponderance of the evidence one or more of the following factors “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 conduct as defined in section 130.00 of the penal law. Criminal Procedure Law §722.23(2)(c). Both parties may be heard and may submit information relevant to the Court’s determination. CPL §722(2)(b). If the Court finds that the People have satisfied their burden, the Court may not remove the case to Family Court without the agreement of all parties. CPL §722.23(2). At the retention hearing, the People advised that they were relying only on the prong requiring them to prove that the defendant displayed a firearm in furtherance of a violent felony. They argued that they had met their burden under two alternative theories: first, that the defendant’s alleged display of a firearm at 2120 Ryer Avenue was in furtherance of the alleged Attempted Murder, and, second, that the defendant’s alleged display of a firearm at 2120 Ryer Avenue was in furtherance of the alleged Attempted Criminal Possession of a Weapon.⁵ The defendant requested an opportunity to make arguments in writing, so a briefing schedule was set. The defendant filed his written argument on August 21, 2019, and the People filed their written response on September 11, 2019. The defense argues primarily that the People have not proved that the defendant’s alleged display of the firearm was “in furtherance of” any violent felony. The People disagree. Having reviewed the two accusatory instruments and the People’s additional filings, and having considered the arguments of both parties, the Court makes the conclusions of law: The Court concludes that the People have not met their burden of proving by a preponderance of the evidence that the defendant displayed a firearm in furtherance of a violent crime. Granted, the People have established by a preponderance of the evidence that the defendant displayed an operable firearm in front of 2120 Ryer Avenue. Nonetheless, the People have failed to establish that the display was “in furtherance of” the underlying crime. As noted, the People proffer two alternative theories as to which crime would serve as the predicate: Attempted Murder and Attempted Criminal Possession of a Weapon.⁶ The Court concludes that neither theory is viable. To begin its analysis, the Court must determine the meaning of the phrase, “in furtherance of,” which is not defined in the “Raise the Age” statute. “[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” People v. Roberts, 31 N.Y.3d 406, 418 (2018) (quoting People v. Golo, 26 N.Y.3d 358, 361 (2015)). The purpose of this analysis is to “ascertain the legislative intent and construe the pertinent statutes to effectuate the intent.” Roberts, supra, 31 N.Y.3d at 418 (quoting In re M.B., 6 N.Y.3d 437, 447 (2006)). “Absent a statutory definition, [the court] ‘must give the [statutory] term its ‘ordinary’ and ‘commonly understood’ meaning.’” People v. Andujar, 30 N.Y.3d 160, 163 (2017) (quoting People v. Ocasio, 28 N.Y.3d 178, 181 (2016)). Our Court of Appeals has recognized that dictionary definitions serve as “useful guideposts” in the court’s task of “determining the meaning of statutory language.” Id. Merriam-Webster defines “furtherance” as “the act of furthering: advancement.” The verb, “to further,” in turn, is defined as “to help forward: promote.” The Oxford English Dictionary similarly defines “furtherance” as “the act of being helped forward; the action of helping forward; advancement, aid, assistance.” The verb, “to further,” is defined as “help on, assist, promote, favour (an undertaking, movement, cause, etc.).” The Court is aware that case law interpreting “in furtherance of” in other contexts is broader than the meaning identified above. Indeed, in People v. Henderson, 25 N.Y.3d 534, 541 (2015), the Court of Appeals held that a defendant’s proposed definition of “in furtherance of” as “to advance or promote” was too narrow in the context of the felony-murder statute. That statute, however, had a legislative purpose to broaden liability, and, the more expansive language better effectuated the legislature’s desired result. By contrast, the legislature’s intention in passing the “Raise the Age” statute is best effectuated by a narrow, plain-meaning definition of “in furtherance of.” In enacting the “Raise the Age” statute, the legislature intended the “overwhelming bulk” of the cases brought against adolescents to be resolved in Family Court. (Assembly, Record of Proceedings, April 8, 2017, at 37.) Requiring that the People prove that an adolescent’s display of a firearm was done in order to “advance or promote” the underlying felony with which the adolescent is charged ensures that all but the most serious cases are in fact subject to the automatic removal provisions of the “Raise the Age” statute. Interpreting the words, “in furtherance of,” as “advancing” or “promoting,” the Court concludes that the People have not met their burden of proof in this matter. As for the alleged Attempted Murder, the People proffer that the defendant met with a co-conspirator before the shooting, waiting in the vicinity, and received the firearm from the co-conspirator at about 6:41 p.m. at East 182nd Street and Tiebout Avenue, after the co-conspirator had fired the weapon at the victim, injuring him. The People further proffer that the defendant then rode his bicycle for about three minutes to 2120 Ryer Avenue, a location about three blocks away, where the defendant was then approached by a male unrelated to the events on Tiebout Avenue. The People proffer that the defendant then pointed the firearm at the unrelated male. By this point, the alleged Attempted Murder was completed, in that shots had been fired, and the perpetrators had left the scene of the shooting. Even if the defendant was tasked with removing the incriminating firearm from the scene of the shooting, that work was accomplished by the time that he allegedly pointed the firearm at the unrelated male. The People have not established by a preponderance of the evidence how pointing the firearm at the unrelated male advanced the perpetrators’ alleged attempt to murder the Tiebout Avenue victim. Nor have the People proved by a preponderance of the evidence how pointing the firearm furthered the defendant’s attempted possession of a loaded and operable firearm. The People have supplied no facts to suggest that the alleged display was to ensure the firearm’s retention or otherwise was made to advance or promote the alleged commission of the crime of attempted Criminal Possession of a Weapon. Indeed, the People’s argument appears to be that whenever an adolescent displays a firearm, he or she is “furthering” the commission of the crime of Criminal Possession of a Weapon or Attempted Criminal Possession of a Weapon. This interpretation would deprive the words, “in furtherance of,” of any meaning or effect, as all cases in which an adolescent displayed a firearm would fall within subsection (ii) of CPL §722.23(2)(c). Such an interpretation is inconsistent with the rules of statutory construction, which require the Court to give meaning and effect to all words. See Roberts, supra, 31 N.Y.3d at 428 (“We have recognized that meaning and effect should be given to every word of a statute and that an interpretation that renders words or clauses superfluous should be rejected.”)(citation omitted). Such an interpretation also is at odds with the legislative purpose behind the “Raise the Age” statute, which is to provide the vast majority of adolescents charged with crimes with the heightened services available through Family Court, rather than to prosecute them in the adult criminal justice system. In sum, the Court concludes that the People have not met their burden under CPL §722.23(2)(c)(ii). Therefore, the matter is subject to the mandate set forth in CPL §722.23(1) — specifically, that the action will be automatically removed to Family Court unless the People filed a timely motion to prevent removal under CPL §722.23(1), and the Court grants the People’s motion. On August 16, 2019, the People did file a written motion to prevent removal under CPL §722.23(1). The defense response was held in abeyance pending the Court’s instant decision under CPL §722.23(2)(c)(ii). On September 16, 2019, the instant decision was conveyed orally on the record to the parties. The defense is to respond to the People’s August 16, 2019, by the date set at that proceeding. * * * This constitutes the Decision and Order of the Court. Dated: October 4, 2019 Bronx, New York