DECISION AND ORDER The defendant in this matter, J.H. (D.O.B. 00/00/2002), is charged as an Adolescent Offender (“AO”) in the Youth Part of the County Court in Nassau County. He is charged by way of a felony complaint with one count of Gang Assault in the First Degree [Penal Law §120.07] and with one count of Assault in the First Degree [Penal Law §120.10(1)]. The within Decision and Order is issued following the Court’s review of the accusatory instrument, arguments by counsel and other relevant facts pursuant to CPL 722.23(2)(b). The charges filed against the AO relate to an incident alleged to have taken place on January 8, 2020, at about 2:40 PM in U., X.X., New York. The AO was arrested on January 12, 2020 and was arraigned by Accessible Magistrate on January 12, 2020. On January 17, 2020, the Court conducted a “sixth-day appearance” pursuant to CPL §722.23(2)(c), for the purpose of reviewing the accusatory instrument and deciding whether the AO’s case is disqualified from automatic removal to the Family Court. CPL §722.23 provides that, with limited exception, AO matters are to be automatically removed to the Family Court unless, within thirty days of the AO’s arraignment, the People move to prevent removal of the action. (CPL §722.23[1][a]). However, in cases, such as this one, where the AO has been charged with one or more violent felonies, the Youth Part judge is required to schedule an appearance no later than six calendar days following arraignment to review the accusatory instrument and “any other relevant facts” and determine whether the matter will proceed toward automatic removal to Family Court under CPL §722.23(1)(a) or be disqualified from such removal and remain in the Youth Part for all future proceedings. (CPL §722.23[2]). At that sixth-day appearance, the Court is required to review the accusatory instrument and “any other relevant facts” to determine whether the People prove, “by a preponderance of the evidence”, one or more of the following three aggravating 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.” (CPL §722.23[2][c]). Both parties may be heard and submit information relevant to the Court’s determination. (CPL §722.23[2][b]). If the People satisfy their burden, then the case is disqualified from proceeding towards automatic removal to the Family Court provided for under CPL §722.23[1][a]. SIXTH-DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT At the sixth-day appearance in this matter, the People did not call any witnesses or introduce any documents into evidence; they read from the felony complaint and asserted additional hearsay-based facts. Counsel for the defense did not call any witnesses or introduce any documents into evidence. Both parties presented arguments based on the allegations in the accusatory instrument and the additional hearsay facts asserted by the People. FINDINGS OF FACT It is alleged in the felony complaint that on or about January 8, 2020, at about 2:40 PM at W. Street in U., X.X., New York, the AO and four arrestees confronted the victim. It is further alleged that one arrestee (not this AO) stabbed the victim with a knife in his lower left abdomen, and that two arrestees (neither one this AO) struck the victim with a baseball bat in the head causing a serious physical injury. It is alleged that this AO and another arrestee punched and kicked the victim’s three friends causing them to suffer substantial pain and bruises about the body, preventing them from aiding the victim. It is further alleged that the victim suffered an intercranial bleed and a stab wound to his lower left abdomen. At the sixth-day appearance, the People further alleged that on the date of the alleged incident, the victim had friends present who tried to stop the others from injuring the victim, and the AO and other defendants stopped the victim’s friends from helping by causing the victim’s friends “substantial pain”. The People reiterated that the victim sustained an intercranial bleed and stab wounds, and that he was hospitalized for his injuries. CONCLUSIONS OF LAW The purpose of the sixth-day appearance under CPL §722.23(2) is for the Court to review the accusatory instrument and “other relevant facts” to determine whether the People have proved by a “preponderance of the evidence”, the presence of one or more of three statutory factors “as set forth in the accusatory instrument”. (CPL §722.23[2]). “To establish a fact by a preponderance of the evidence means that the fact is more likely than not to have occurred”. (Matter of Beautisha B., 115 AD3d 854, 854 [2d Dept. 2014]; People Giuca, 33 NY3d 462, 486 [2019] [in dissent]). The statutory provision governing the sixth-day appearance does not specify the nature and scope of the parties’ opportunity to be heard at such an appearance, including what evidence the Court may consider in making its determination. (CPL §722.23[2]). However, it has been this Court’s practice, and the apparent practice of other Youth Part courts, to consider the accusatory instruments, supporting depositions, and, as is the case “with most pretrial hearings”, to also consider hearsay evidence. (People v. B.H., 62 Misc.3d 735, 739-740 [Co. Ct., Nassau County 2018]; People v. J.W., 63 Misc.3d 1210[A] [Sup. Ct. Kings Cty. 2019]; People v. Y.L., 64 Misc.3d 664 [Co. Ct. Monroe Cty. 2019]). The issue in this case is whether the People have proved by a “preponderance of the evidence” that this AO “caused significant physical injury to a person other than a participant in the offense”. (CPL §722.23[2][c][i]). The Court finds, notwithstanding the severity of the injuries sustained by the victim, that the People have failed to satisfy their burden in proving that this AO “caused” the victim’s injuries. The People conceded at the sixth-day appearance that the AO did not directly cause the victim’s stab wounds or intercranial bleeding. The Court is not persuaded by the People’s argument that the Court must consider “accomplice liability” when determining whether one of the three statutory factors is present for the purposes of the sixth-day appearance. The Court is obligated to interpret CPL §722.23[2] to effectuate the intent of the Legislature, and in this case, the Court finds that the subject statutory language is clear and unambiguous and therefore should be construed to give effect to the plain meaning of the words used therein. (People v. Brown, 115 AD3d 155, 158, [2d Dept. 2014], aff’d, 25 NY3d 247 [2015]). The Court finds that, giving effect to the “plain meaning” of the words used therein, that CPL §722.23[2][c][i] is intended to disqualify an AO’s case from removal to Family Court, when he or she directly “cause[d] significant injury” to a non-participant in the offense. The Court finds no basis in the statutory language to expand the scope of disqualification to include individuals who did not directly cause significant injury. Even if the plain language used in CPL §722.23[2][c][i] were arguably ambiguous, further analysis leads this Court to the same conclusion. The legislative history of the 2017 Raise the Age ["RTA"] legislation reveals that the objective of RTA is to treat 16- and 17-year-olds as children and not as adults, and to, whenever possible, give them the opportunity to get back on the right track. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], pp. 67, 86). Legislators contemplated that, with limited exception, the “overwhelming bulk” of cases would be removed from the Youth Part to the Family Court. (Assembly Record, p. 37). Furthermore, legislators expressly addressed the question of whether an AO who did not directly cause a significant injury should still be disqualified from removal to Family Court. Assembly-member Joseph Lentol stated that the “caused significant injury” factor is intended to disqualify “the sole actor who causes the conduct outlined in the test” and to disqualify “the [AO] who directly caused the injury, who displayed the weapon in his or her own hand….”. (Assembly Record, p. 51) (emphasis supplied). The Court recognizes that there could be circumstances where the People prove, for the purposes of the sixth-day appearance, that more than one individual “directly caused” significant injury to a non-participant. (See People v. E.B.M., 63 Misc.3d 576, 583 [Co. Ct. Nassau Cty. 2019]). Similarly, there could be circumstances where the People prove that several accomplices all took such a clear and active role in causing the complainant’s injuries, that it would be impossible to pinpoint exactly which specific actor was directly responsible for causing the significant injury. Those circumstances are not present in this case. The Court agrees with defense counsel that the allegations in the Felony Complaint and the additional factual allegations asserted by the People at the sixth-day appearance are insufficient to prove, by a preponderance of the evidence, that the AO “caused significant injury” to the victim in this case. Accordingly, the Court finds that the People failed to satisfy their burden and the AO’s matter will be removed to the Family Court. The arraignment of the AO’s case having taken place on January 12, 2020, the matter will be removed to the Family Court on February 11, 2020, with the AO to appear before the Honorable Conrad Singer in the Family Court on February 11, 2020 at 9:00 AM, absent a motion by the People before that date and further order of this Court. This constitutes the opinion, decision and order of this Court. Dated: January 28, 2020
