The following papers were read on this motion: Juvenile Offender’s Notice of Motion and supporting papers 1 People’s Affirmation in Opposition to Defendant’s Motion 2 Juvenile Offender’s Affirmation in Reply 3 DECISION AND ORDER The Juvenile Offender (“JO”), E.S.B. (D.O.B. 00/00/2004), is charged by indictment with one count of Assault in the First Degree [Penal Law §120.10(1)], one count of Gang Assault in the First Degree [Penal Law §120.07], and one count of Assault in the Second Degree [Penal Law §120.05(2)]. Defense counsel has moved for an Order removing the JO’s case to the Family Court pursuant to CPL §§722.20 and 722.22. The People have filed opposition to the JO’s Motion for Removal, and the JO has filed a Reply Affirmation. The JO’s Motion for Removal is determined as follows: The charges filed against the JO arise from an incident alleged to have taken place on January 8, 2020, at approximately 2:40 PM in U., Nassau County, New York. It is alleged that on that date and at that time, the JO and his codefendant adolescent offenders/juvenile offenders, individually and aiding and abetting and being aided and abetted by each other and with others, attacked the victim in this case and caused him to sustain serious injuries, including by means of using a deadly weapon/weapons. The JO was arraigned on the indictment on March 11, 2020. The JO argues that his case should be removed to the Family Court or, in the alternative, requests a hearing to permit the Court to make a factual and legal determination. The JO’s counsel argues that the subject incident was a “melee” between two rival gangs. Defense counsel further argues that several factors exist which warrant removal of the JO’s case including, inter alia, uncertainties as to this JO’s actual role and involvement in the fight, as well as the fact that the objective evidence establishes that this JO was not the person who introduced any weapons into the “brawl”, which was “ongoing prior to his alleged involvement”. (Affirmation in Support of Defendant’s CPL §722.20 and §722.22 Motion by Donald Rollock, Esq., dated February 11, 2020 ["Rollock Aff. in Support of Motion for Removal"],
4, 6, 8, 9, 12). Defense counsel further argues that this JO’s specific role “is more analogous to the conduct” of another individual, in that this JO was “interfering or fighting with the other active participants who were fellow gang members” of the complainant. (Rollock Aff. In Support of Motion for Removal, 13). In opposition to the JO’s motion, the People argue, inter alia, that the victim showed up to what he believed was going to be a one-on-one fist fight with no weapons, but the subject incident was an assault by four juvenile/adolescent offenders who jointly participated in the assault on the victim with the use of weapons. (People’s Affirmation in Opposition to Defendant’s Motion by Tova B. Simpson, dated February 11, 2020 ["Simpson Aff. in Opp."], 5). The People further argue that, while this JO did not possess any weapons himself, he did join in on the fight, and once the victim was on the ground (having been hit with baseball bats), the JO repeatedly kicked the victim in and about the head. (Simpson Aff. In Opp., 5). The People further argue that although the video does not clearly show the JO’s face, and the JO cannot be identified only from the video, the JO has been identified by witnesses, who corroborate the actions of the JO as seen on the video. (Simpson Aff. In Opp., 14). Such actions, according to the People, include running over to join in on the fight, going straight to where the victim was on the ground from having been beaten by others, and proceeding to kick the victim in and about the head. (Simpson Aff. in Opp., 14). In Reply thereto, the JO’s counsel further elaborates upon his prior arguments and purports to further identify weaknesses in the People’s underlying case. Such arguments include that the complainant was a “willing combatant” and that the People, in declining to charge the complaint in connection with the subject incident, have “taken sides” as to two rival gangs “based upon who was injured most in this incident”. (Reply Affirmation of Donald Rollock, Esq., dated April 9, 2020 ["Rollock Reply Aff."],
