DECISION AND ORDER The defendant in this matter, Y.A.M. (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 two counts of Attempted Murder in the Second Degree [Penal Law §§110.00/125.25(1)]; and one count of Criminal Possession of a Weapon in the Second Degree [Penal Law §265.03(3)]. The within Decision and Order is issued after the Court’s review of the accusatory instrument, arguments by counsel and other “relevant facts” pursuant to CPL §722.23(2)(b). The charges against the AO arise from an incident alleged to have occurred on January 20, 2020, at about 11:23 PM in H., Nassau County, New York. The AO was arrested and arraigned on March 25, 2020; at which time he was remanded without bail. On May 21, 2020, the Court conducted its statutory review of the accusatory instrument pursuant to CPL §722.23(2)1. CPL §722.23(2)(c) requires that the Court order the AO’s action to proceed towards 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. Such factors include, as relevant in this case, that: “[t]he defendant displayed a firearm…or deadly weapon as defined in the penal law in furtherance of such offense” and/or that “the defendant caused significant physical injury to a person other than a participant in the offense” (CPL §722.23[2][c][i] and [ii]). “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]). In making its determination as to whether the People have satisfied their burden under CPL §722.23(2), the Court may consider the accusatory instrument, any supporting depositions, as well as 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]; see also, CPL §722.23(2), “…the court shall review the accusatory instrument and any other relevant facts for the purpose of making a determination…Both parties may be heard and submit information relevant to the determination” [emphasis supplied]). SIXTH-DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT At the sixth-day appearance, the People argued that the AO’s case should not be removed to the Family Court because of the presence of two statutory aggravating factors: i.e., “[t]he defendant displayed a firearm…in furtherance of such offense”; and “the defendant caused significant physical injury to a person other than a participant in the offense”. (CPL §722.23[2][c][i] and [ii]). In so arguing, the People relied upon the allegations set forth in the Felony Complaint, which they further developed with additional hearsay-based facts. Defense counsel opposed the People’s presentation, arguing that the People had only provided them with an unsigned Felony Complaint2, and that the People had presented no witnesses and had submitted no medical records to establish that the alleged injuries actually occurred. FACTUAL ALLEGATIONS It is alleged in the Felony Complaint that on January 20, 2020, at about 11:23 PM, at a location in H., Nassau County, New York, the AO was in possession of a loaded handgun. It is further alleged that, while in possession of said firearm, and attempting to cause death, the AO fired five rounds directly at victims while they were seated in a parked vehicle. It is further alleged that one of the listed victims suffered a gunshot wound to his head. The Felony Complaint filed with the Court is sworn and signed by Detective J.B.S.; the deponent represents that his statements are made upon information and belief, and specifies that the sources of such information and belief include his investigation at the scene, physical and video evidence, a positive confirmatory identification made by a witness, and hundreds of investigations involving firearms. At the sixth-day appearance, the People further alleged that the AO fired a gun five times, from point blank range at two different victims, striking one of the victims in the head. CONCLUSIONS OF LAW As stated above, 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 proved, by a preponderance of the evidence as set forth in the accusatory instrument, the presence of one or more of three factors that will disqualify the AO’s case from proceeding toward removal to the Family Court; including, as relevant here, that the AO “displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense” (CPL §722.23[2][c][ii]). The statute provides that both parties may be heard and submit information relevant to the determination (CPL §722.23[2][b]). In this case the Court finds, based on the language used in the accusatory instrument, together with the additional facts provided at the sixth-day appearance, that the People satisfied their burden of proving “by a preponderance of the evidence” that, “as set forth in the accusatory instrument”, “the defendant displayed a firearm…or deadly weapon as defined in the penal law in furtherance of such offense”. (CPL §722.23[2][c](ii); Penal Law §265.00[3] “Firearm”). Specifically, it is alleged that the AO fired multiple shots from a loaded handgun at two separate victims, striking one of the victims in the head. A handgun constitutes a “firearm” as defined in the penal law3, and in this case the AO is alleged to have actually fired such firearm, which conduct actually goes beyond just the “display” of a firearm. Accordingly, the Court finds that the People pled and proved “by a preponderance of the evidence”, that the AO displayed a firearm in furtherance of the offenses for which he stands accused, and the AO’s case is therefore disqualified from removal to the Family Court. While both parties presented facts and arguments relating to a second statutory factor, i.e., whether the AO also “caused significant physical injury to” one or more of the victims, CPL §722.23(2)(c) only requires the presence of one factor for the case to be retained in the Youth Part. The Court need not address the “significant injury” factor at this time. (See, CPL §722.23[2]). As the People have satisfied their burden under CPL §722.23(2)(c), their application to disqualify the AO’s case from removal to the Family Court is granted in its entirety. The Youth Part will retain the AO’s case for all future proceedings. This constitutes the opinion, decision and order of this Court. Dated: June 2, 2020
