DECISION AND ORDER The defendant in this matter, K.F. (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 Robbery in the First Degree [Penal Law §160.15(1)]; and 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). Under CPL §722.23, the Court is required, except under certain limited circumstances, to order that an AO’s case be removed from the Youth Part to the Family Court within 30 days of the AO’s arraignment. However, in a case such as this one, where the AO has been charged with one or more “violent felonies” [see Penal Law §70.02], the Court must schedule an appearance no later than six calendar days from arraignment to review the accusatory instrument and determine whether the presence of one or more aggravating factors therein disqualifies the AO’s case from automatic removal to the Family Court. (CPL §722.23 [2]). CPL §722.23(2)(c) requires that the Court order the AO’s action to proceed towards automatic removal to the Family Court unless it finds that during the sixth-day appearance the People prove, by a preponderance of the evidence, the existence of one or more aggravating factors including, as relevant in this case, that: “[t]he defendant caused significant physical injury to a person other than a participant in the offense”. (CPL §722.23 [2][c][i]). “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]). Furthermore, while 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)], 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]). In this case, the charges against the AO arise from an incident alleged to have occurred at about 3:40 PM on January 17, 2020, in M., N., New York. The AO was arrested on January 17, 2020 and arraigned on January 18, 2020. His first appearance in the Youth Part was on January 21, 2020. At that time, the AO, through counsel, waived the statutory six-day timeframe applicable to the Court’s review of the accusatory instrument, and, at the request of and on consent of all parties, the statutory sixth-day review was scheduled for February 11, 2020. SIXTH-DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT At the sixth-day appearance on this matter, the People argued that the AO’s case should be disqualified from removal to the Family Court based on the following aggravating factor: that the AO “caused significant physical injury” to the complaining witness in this case. The People did not call any witnesses or offer any documents into evidence. They relied upon the allegations set forth in the Felony Complaint and further developed those allegations with additional hearsay-based facts. They argued that while this AO is not alleged to have directly caused the complaining witness’s injuries, that the Court should find that he “caused” such injuries based on accomplice liability principles. Defense counsel opposed their presentation, arguing that the AO’s co-defendant, and not this AO, “caused” the complaining witness’s significant injuries. Defense counsel offered several documents into evidence; all were moved into evidence on consent: the Felony Complaint [AO's Exhibit A]; the complaining witness’s sworn deposition [AO's Exhibit B]; and the sworn depositions of other witnesses [AO's Exhibits C through F]. Defense counsel argued that only the individual who “directly” caused the complaining witness’s significant injuries should be disqualified from removal. Both parties presented arguments addressing the correct statutory interpretation of CPL §722.23[2][c][i], the legislative intent behind the Raise the Age legislation, and the body of caselaw involving the “caused significant physical injury” factor. FACTUAL ALLEGATIONS The Felony Complaint alleges that on or about January 17, 2020, at about 3:40 PM, at 000 P. Road in M., Nassau County, New York, this AO “aided” his co-defendant in forcibly stealing $30.00 from the victim. It is further alleged therein that his co-defendant “intentionally cut the victim on both of his hands with a collapsible type of knife”, which caused him to sustain a “deep laceration exposing the bone and the artery” to both of his hands, requiring approximately 30 stitches and causing the victim “severe bleeding and substantial pain”. The victim was taken to the hospital, where he received treatment for his injuries. The collapsible knife which caused his injuries was allegedly recovered from the co-defendant’s jacket pocket. At the sixth-day appearance, the People further alleged that the parties involved — the complaining witness, this AO, and his co-defendant — met at the train station in M. for a drug sale transaction. They further alleged that this AO was responsible for setting up the entire “meet”, that this AO punched the victim in his face when the “meet” wasn’t going “his way”, that this AO solicited his co-defendant to enter the bathroom where the AO and the complaining witness were fighting by yelling “Yo, come in”, and that this AO grabbed the victim’s money. The People further elaborated on the discussion of the complaining witness’s injuries, alleging that he suffered slashes to his hands requiring 30 stitches, nerve surgeries, and skin grafts, and that it would take an extended period of time for him to recover. In opposition to the People’s presentation, defense counsel relied upon, inter alia, the complaining witness’s sworn supporting deposition [AO Ex. B], in which he affirmed that he observed the co-defendant with a knife in his hand and that the co-defendant was trying to “stab” him. He further affirmed that he suffered deep lacerations to both his hands when he tried to defend himself by reaching for the co-defendant’s knife. He affirmed that this AO grabbed his money and ran out of the bathroom while the co-defendant and the victim were fighting in the train station lobby. CONCLUSIONS OF LAW In this case, the parties did not dispute that the complaining witness sustained “significant physical injuries” for the purpose of the sixth-day review. Rather, it appears that the parties rely on different interpretations of the statutory phrase “the defendant caused significant physical injury…”. (CPL §722.23[c][i]) (emphasis supplied). The People acknowledged that this AO is not alleged to have been the purported “slasher” or to have otherwise directly caused the complaining witness’s significant injuries, but argue that he still “caused” such injuries for the purposes of disqualification from removal to the Family Court, based on accomplice liability principles. Defense counsel argues that only the person who “directly” caused the significant injury should be disqualified from having his case removed to the Family Court. “It is well established that since ‘the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’”. (People v. Pabon, 28 NY3d 147, 152 [2016]; People v. Brown, 115 AD3d 155, 158 [2d Dept. 2014], aff’d, 25 NY3d 247 [2015]). “When the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used”. (Pabon, supra, 28 NY3d at 152). In this case, the Court finds that, giving effect to the “plain meaning” of the words used therein, CPL §722.23[2][c][i] is intended to disqualify an AO’s case from removal to Family Court, when he or she directly “caused significant injury” to a non-participant in the offense. At this time, the Court is not persuaded by the People’s argument that the statutory language used in the Juvenile Offender ["JO"] removal provision [see CPL §722.22] indicates that the AO removal provision [CPL §722.23(2)(c)(i)] should be interpreted to cover additional defendants based on accomplice liability principles. First, the Court finds that because the “plain meaning” of the text is unambiguous, the Court need not, and should not, resort to other means of interpretation. (See People v. Campbell, 98 AD3d 5, 10 [2d Dept. 2012], leave to appeal denied, 20 NY3d 853 [2012]). In any event, even if it were appropriate to compare the statutory language used in the AO and JO removal statutes, the Court is not convinced at this time that the language used in the JO removal statute necessarily compels the conclusion that the legislature intended the “defendant caused significant physical injury” factor to include accomplice liability principles. (compare, CPL §722.22 with CPL §722.23). Apart from the Court’s text-based analysis of the statute, the Court’s interpretation of the meaning of “defendant caused” is also consistent with the purpose of the Raise the Age Legislation, i.e. to raise the age of criminal liability as it pertains to 16-and 17-year-old offenders, with the vast majority of cases that are initiated in the Youth Part being removed to the Family Court. (See People v. Pabon, supra, 28 NY3d at 154; Assembly Record of Proceedings, April 8, 2017, p. 37 ["and under the language of this bill, we definitely intend that in the overwhelming bulk of the cases that the matter will be promptly transferred from the adult court to the family court"]). Furthermore, the Court notes that the facts of this case are distinguishable from the cases cited by the People in support of their argument for “accomplice liability”, because in those cases, even if accomplice liability principles were discussed, such as aiding and sharing a “community of purpose”, the People had also sufficiently proved that the AOs whose cases were disqualified from removal had “directly participated” in the physical attack which caused the victim’s significant physical injury. (People v. Y.L., 64 Misc3d 664, 670 [Co. Ct. Monroe Cty. 2019]; People v. E.B.M., 63 Misc3d 576, 583 [Co. Ct. Nassau Cty. 2019]). Finally, even assuming that accomplice liability principles were applicable to the Court’s sixth-day review of the accusatory instrument, the Court finds that in this case the People failed to establish, for the purposes of the sixth-day review, that this AO knew or should have known that his co-defendant possessed a knife, much less that he shared any intent to use such knife to inflict a significant physical injury on the complaining witness. (See, e.g., People v. Smith, 87 AD3d 1169, 1170 [2d Dept. 2011]). For the foregoing reasons, the People’s application to disqualify the AO’s case from removal to the Family Court is denied. The AO was arraigned on January 18, 2020, such that the sixth-day appearance would ordinarily have been held on January 24, 2020 if the AO had not waived applicable time constraints. As the sixth-day appearance was not conducted until February 11, 2020, which itself was nearly 30 days after the AO’s arraignment, the case must be removed to the Family Court forthwith. However, the People have not waived their further opportunity to prevent removal of the AO’s case to the Youth Part by filing a motion based on the existence of “extraordinary circumstances”. (CPL §722.23[1][a]). Accordingly, the AO’s case shall be removed to the Family Court on March 24, 2020, with the AO to appear before the Honorable Conrad Singer in the Family Court on March 25, 2020 at 9:00 AM, absent a motion by the People filed and returnable before March 24, 2020, and further order of this Court. This constitutes the opinion, decision and order of this Court. Dated: March 11, 2020
