DECISION AND ORDER The defendant in this matter, C.D. (D.O.B. 00/00/2003), 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 Robbery in the First Degree (Penal Law §160.15 [1]); and one count of Assault in the First Degree (Penal Law §120.10 [1]). These charges relate to an incident alleged to have occurred at about 3:40 PM on January 17, 2020, in M., N.C., New York. He is also charged with one count of Criminal Possession of a Forged Instrument in the Second Degree (Penal Law §170.25), in connection with his alleged possession of two fraudulent New York State Driver license documents on January 18, 2020. 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 AO was arrested on January 17, 2020, and on January 18, 2020, he was arraigned by an Accessible Magistrate in the District Court of Nassau County. On February 10, 20201, the Court conducted an appearance pursuant to CPL §722.23(2)(a) for the purpose of reviewing the accusatory instrument and determining whether the AO’s case is disqualified from automatic removal to the Family Court. Under CPL §722.23(2)(c), the Court is required to order an action to proceed with automatic removal to the Family Court unless, during this statutory “sixth-day appearance”, the District Attorney’s office proves, by a preponderance of the evidence, the existence of one or more of three statutory 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 On February 10, 2020, the Court conducted the sixth-day appearance in this matter. The People argued that the AO’s case should be disqualified from removal to the Family Court due to the presence of two aggravating factors: 1) that the AO caused significant physical injury to a person other than a participant in the offense; and 2) that the AO displayed a deadly weapon in furtherance of such offense. The People did not call any witnesses. One photograph of a knife and three photographs of the complaining witness’s injuries were entered into evidence, on consent [People's Exhibits 1-4]. The People also submitted the Felony Complaint, which was also entered into evidence on consent [People's Ex. 5]. The People further developed the allegations set forth in the felony complaint by asserting additional hearsay-based facts. The AO’s counsel did not call any witnesses in response to the People’s presentation. A copy of the People’s CPL §710.30(1)(a) Notice of AO’s statement was entered into evidence, on consent (AO’s Exhibit A). The complaining witness’s Supporting Deposition was likewise entered into evidence on consent. (AO’s Exhibit B). Counsel for the AO disputed the People’s version of the underlying facts in this matter. Both parties asserted arguments based on the statutory language contained in CPL §722.23(2)(c). FACTUAL ALLEGATIONS It is alleged in the Felony Complaint [People's Ex. 5], that on January 17, 2020, at about 3:40 PM in M., New York, the AO, aided by his co-defendant, forcibly stole $30.00 from the victim. It is further alleged that the AO intentionally cut the complaining witness on both of his hands with a collapsible type of knife with a 3 ½ inch blade, causing a deep laceration exposing the bone and the artery to both of the complaining witness’s hands, requiring approximately 30 stitches and causing severe bleeding and substantial pain. The complaining witness was taken to the hospital, where he was treated for his injuries. It is further alleged that a collapsible type of knife was recovered from the AO’s right-side jacket pocket. It is further alleged that on January 18, 2020, at approximately 2:30 AM, while at the Third Squad, the AO was in possession of two fraudulent New York State Driver license documents. At the “sixth-day appearance” the People asserted additional hearsay-based facts, including that the incident occurred at a train station in M., where the complaining witness had gone to purchase drugs from the AO and his co-defendant. The People further asserted that when the alleged drug buy did not work out, the AO’s co-defendant called out to the AO, and that the AO then entered the bathroom where the co-defendant had been with the victim. It was further asserted that the AO pulled out a knife, holding it up over his own head, and then swung it down to cut the complaining witness. The People asserted that the complaining witness required hand surgery on his left hand, due to nerve damage, and that he was required to undergo skin grafts, surgery and multiple stitches. (People’s Exhibits 2 through 4). In response to the People’s presentation, the AO’s counsel argued that the “significant physical injury” aggravating factor does not apply in this case, because the so-called “victim” in this matter was actually there to rob the AO and his co-defendant. Thus, the “victim” was a participant in the offense. (AO’s Exhibit A). The AO’s counsel further asserted that, based upon the AO’s statements to law enforcement and the complaining witness’s supporting deposition, the AO did not “display” the knife in furtherance of the offense; he displayed the knife to defend his co-defendant from being robbed by the complaining witness, and the complaining witness admitted that he grabbed the AO’s knife. (AO’s Exhibit B). CONCLUSIONS OF LAW The purpose of the statutory sixth-day appearance 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][b])(emphasis supplied). The Court notes that the “preponderance of the evidence” standard of proof is typically used in civil, not criminal cases, and that it is obviously not as stringent a burden of proof as the “beyond a reasonable doubt” standard used to determine whether the AO is guilty of the crimes charged. (Matter of Cerrick D., 58 Misc.3d 479, 482 [Sup. Ct. Oneida Cty. 2017]; see also, Matter of Nezaj v. Brahimi, 88 AD3d 723, 723-24 [2d Dept. 2011]). “To establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred”. (Matter of Beautisha B., 115 AD3d 854, 854 [2d Dept. 2014]; People v. 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]). Therefore, the issue before this Court is whether the People have established that it is “more likely than not” that this AO caused a “significant physical injury” to a person other than a participant in the offense “as set forth in the accusatory instrument”. (CPL §722.23[2][c][i]). The accusatory instrument charges this AO with robbing and assaulting the complaining witness and alleges that the complaining witness was injured in the course of that robbery and assault. In this case, the Court has reviewed the allegations contained in the Felony Complaint, which are sworn to by a member of law enforcement, has considered the additional hearsay factual arguments raised by both the People and the defense, and has reviewed the photos and documents entered into evidence by both parties. The Court finds that, based on its review and consideration of the foregoing, that the People have satisfied their burden and proved, by a preponderance of the evidence, that this AO caused the complaining witness to sustain a “significant physical injury” in furtherance of the conduct charged in the accusatory instrument. First, the complaining witness’s injuries certainly qualify as “significant physical injuries” for the purpose of the sixth day appearance, considering that the lacerations to his hands exposed bones and arteries, that he was required to undergo surgery due to nerve damage, and to undergo skin grafts and receive multiple stitches. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], pp. 26-27 [legislators discussing that "significant physical injury" would include "major aggravating factors, such as bone fractures [and] injuries requiring surgery….” and that “significant physical injury” was anticipated to be found where there was “something more serious than a bruise, but less serious than a disfigurement”). Second, considering the totality of the arguments and the evidence presented during the sixth-day appearance, the Court finds that the People satisfied their burden with respect to proving that the AO caused such injuries in furtherance of the offenses charged in the accusatory instrument. While the People argued that the AO’s case should remain in the Youth Part due to the presence of two aggravating factors, the Court notes that the People need only prove one factor for the case to be disqualified from automatic removal. As the People have satisfied their burden with respect to the “significant physical injury” factor, the Court need not address whether they also satisfied their burden as to the second factor, i.e. that the AO “displayed…a deadly weapon” in furtherance of the offense. (CPL §722.23[2][c][ii]). The Court notes that the arguments and exhibits presented by defense counsel during the sixth-day review may foreshadow potential difficulties the People may face in ultimately proving their case against the AO and his co-defendant. However, at this juncture, the People have satisfied their burden in establishing that the AO’s case should be disqualified from automatic removal to the Family Court. Accordingly, because the People have satisfied their burden under CPL §722.23(2)(c), the matter is retained in the Youth Part. This constitutes the opinion, decision and order of this Court. Dated: March 3, 2020
