DECISION AND ORDER The defendant in this matter, L.S. (D.O.B. 00/00/2003), is charged as an Adolescent Offender (“AO”) in the Youth Part of the County Court in Nassau County. On March 19, 2020, he was arraigned in the Youth Part and on March 20, 2020, he was indicted by the Grand Jury of Nassau County. He is accused of one count of Criminal Sexual Act in the First Degree (Penal Law §130.50[1]); one count of Attempted Rape in the First Degree (Penal Law §§110.00/130.35[1]); and one count of Sexual Abuse in the First Degree (Penal Law §130.65[1]). 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 March 17, 2020, in Nassau County, New York. On May 21, 2020, the AO was arraigned on the indictment and immediately thereafter 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: “[iii] the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the penal law”. (CPL §722.23 [2][c][iii]). “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 in this case, the People argued that the AO’s case should not be removed to the Family Court because of the statutory factor that the defendant unlawfully engaged in sexual contact as defined in section 130.00 of the penal law. (CPL §722.23 [2][c][iii]). The People relied on the accusatory instrument and developed the accusations set forth therein with hearsay factual information. They submitted the minutes from the Grand Jury proceedings into evidence (People’s Ex. 1) and concluded their presentation. Defense counsel did not assert any arguments in response to the People’s presentation. FACTUAL ALLEGATIONS It is set forth in the indictment that on March 17, 2020, the AO committed acts constituting Criminal Sexual Act in the First Degree by engaging in oral sexual conduct with another person by forcible compulsion. The People further alleged at the “Sixth-Day Appearance” that the AO was indicted on this charge for conduct which included his exposing his genitals to the victim, and, after she rejected his request for oral sex, his pushing her down, applying pressure to her upper chest with his own body, choking the victim, and, after she refused to open her mouth, his violently prying her mouth open with his own hands, and then inserting his erect penis into her mouth. It is further set forth in the indictment that on March 17, 2020, the AO committed acts constituting Attempted Rape in the First Degree, for his attempt to engage in sexual intercourse with another person by forcible compulsion. At the “Sixth-Day Appearance”, the People further alleged that the AO was indicted on this charge for conduct which included violently forcing the victim to the ground, removing her pants, and forcing his erect penis into her vagina, possibly resulting in penetration. The indictment further sets forth that on March 17, 2020, the AO committed acts constituting Sexual Abuse in the First Degree, for his subjecting the victim to sexual contact by forcible compulsion. At the “Sixth-Day Appearance”, the People further alleged that the AO was indicted on this charge for his manually inserting a finger into the victim’s vagina without her permission. 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 “unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the penal law2“. (CPL §722.23 [2][c][iii]). 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 its review of the accusatory instrument, and considering the same together with the additional facts, arguments and evidence provided by the People at the sixth-day appearance, that the People satisfied their burden for the purposes of retaining the AO’s case in the Youth Part. (CPL §722.23[2][c][iii]). Specifically, the People pled and provided sufficient “relevant facts” for the Court to find it “more likely than not” that the AO “unlawfully engaged in…oral sexual conduct” or “sexual contact as defined in section 130.00 of the penal law”. (CPL §722.23[2][c][iii]). 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
