DECISION AND ORDER The defendant in this matter, E.M. (D.O.B. 00/00/0000), 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 Attempted Robbery in the First Degree [Penal Law §§110/160.15(2)]; one count of Criminal Possession of Marihuana in the Fourth Degree [Penal Law §221.15]; one count of Criminal Possession of a Weapon in the Fourth Degree [Penal Law §265.01(2)]; and one count of Menacing in the Second Degree [Penal Law §120.14(1)] . The within Decision and Order is issued after the Court’s review of the accusatory instrument, arguments by counsel and “other relevant facts” offered at the statutory “sixth-day appearance” pursuant to CPL §722.23(2)(b). CPL §722.23(2) requires the Court to order that an AO’s case proceed towards automatic removal from the Youth Part to the Family Court unless the Court 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: “[ii] the defendant 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 charges against the AO arise from an incident alleged to have occurred on October 17, 2020, at about 3:00 PM in C., Nassau County, New York. The AO was arrested on October 17, 2020 and arraigned on October 18, 2020. His first appearance in the Youth Part was on October 19, 2020, at which time the Court scheduled the statutory “sixth-day appearance” in this matter for October 23, 2020. SIXTH-DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT At the “sixth-day appearance”, the People argued that the AO’s case should be disqualified from removal to the Family Court because this AO allegedly displayed a deadly weapon, i.e., a switchblade knife, during an attempted robbery. The People did not call any witnesses or offer any documents into evidence. Their presentation consisted of reading from the Felony Complaint, which they supplemented with argument and additional hearsay-based facts. Defense counsel opposed the People’s presentation, arguing the AO’s case should be removed to the Family Court because none of the three statutory aggravating factors are applicable in this case. Defense counsel did not call any witnesses or offer any documents into evidence. Their presentation primarily consisted of arguing that the accusatory instrument is insufficient and conclusory in alleging that the AO held a “switchblade knife” to the victim’s stomach. They argued that there is no evidence and nothing before the Court proving the existence of an aggravating factor that would mandate this Court to keep the case in the Youth Part, rather than remove it to the Family Court. The People responded that defense counsel’s reference to the sufficiency of the Felony Complaint is misplaced, as the issue for the “sixth-day appearance” is not the sufficiency of the Felony Complaint, but rather whether the People have sufficiently shown that the AO “displayed” a “switchblade knife”. The People repeated the allegations from the Felony Complaint describing the alleged switchblade and argued that the weapon allegedly involved constituted a “switchblade knife” as defined under statute. Counsel for defense responded that there were no facts matching the statutory definition of “switchblade knife” and no “competent evidence” before the Court establishing that the weapon allegedly used was a “switchblade knife”. FACTUAL ALLEGATIONS The Felony Complaint alleges that on or about October 17, 2020 at about 3:00 PM, “at C.”, in Nassau County, New York, the AO attempted to forcibly remove the victim’s jacket by threatening the use of a deadly weapon. The Felony Complaint further alleges that the AO stated to the victim “give me your jacket” while holding a switchblade knife to his stomach and that, when this happened, the victim walked away without relinquishing his jacket. It is further alleged that during a search incident to a lawful arrest a gray metal switchblade knife approximately 4inches in length was recovered from the AO’s right front pocket. It is further alleged that 232 grams of marijuana was recovered after a search of the AO’s black bookbag. CONCLUSIONS OF LAW The purpose of the statutory “sixth-day appearance” is for the Court to review the accusatory instrument “and any other relevant facts” for the purpose of determining whether the case should be disqualified from automatic removal to the Family Court. (CPL §722.23[2][b] and [2][c]). Under CPL §722.23[2][c], the Court is required to order that an AO’s case proceed towards automatic removal to the Family Court unless, after reviewing the papers and hearing from the parties at the “sixth-day appearance”, the Court determines in writing that the People proved “by a preponderance of the evidence”, the existence of one or more aggravating factors including, as relevant in this case, that: ” [ii] the defendant 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 preponderance of the evidence standard “simply requires that the trier of fact…believe that the existence of a fact is more probable than its nonexistence before the trier of fact may find in favor of the party who has the burden to persuade the trier of fact of the fact’s existence”. (Cole v. Cole, 35 NY3d 1012, 1020 [2020][in dissent]; Matter of Beautisha B., 115 AD3d 854, 854 [2d Dept. 2014]; People v. Giuca, 33 NY3d 462, 486 [2019] [in dissent]). CPL §722.23(2)(b) provides that “[b]oth parties may be heard and submit information relevant to the [Court's] determination”. However, the Raise the Age ["RTA"] statute 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, any supporting depositions, and to also consider hearsay evidence. (People v. B.H., 62 Misc3d 735, 739-740 [Nassau County Ct 2018]; People v. J.W., 63 Misc3d 1210[A] [Sup Ct, Kings County 2019]; People v. Y.L., 64 Misc3d 664 [Monroe County Ct 2019]). The Court finds further guidance on the intended scope of the “sixth-day appearance” from a review of the legislative history of the RTA legislation. (People v. Roberts, 31 NY3d 406, 423 [2018]). Legislators explained that the purpose of the “sixth-day appearance” is to distinguish those cases that are technically designated as “violent” felonies under the Penal Law1 but which actually involve “non-violent” acts (e.g., Burglary in the Second Degree), from “violent” felonies which actually do involve violent acts or illegal sex acts. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], pg. 20). They contemplated that the Judge would look at the accusatory instrument “in front of him [or her] to decide whether or not it passes three tests”, i.e., 1) whether or not a weapon was involved in furtherance of the crime; 2) whether there was significant physical injury involved in the case; and/or 3) whether there were any sex crimes employed during the course of the commission of the crime. (Assembly Record, pg. 20). Cases where the Judge did not find any of the three aggravating factors would proceed toward being automatically removed to the Family Court. (Assembly Record, pg. 20; CPL §722.23[2][c]). Therefore, this Court is tasked with determining whether the People have satisfied their burden in demonstrating, “by a preponderance of the evidence”, that the AO “displayed a…deadly weapon as defined in the penal law in furtherance of” the crimes with which he has been charged. (CPL §722.23 [c][ii]). If so, the case is disqualified from being removed to the Family Court and it remains in the Youth Part for all future proceedings. In this case, it is alleged in the accusatory instrument that the AO held a switchblade knife to the victim’s stomach in the course of attempting to forcibly remove the victim’s jacket. “Switchblade knife” is expressly included in the statute defining the term “deadly weapon”. (Penal Law §10.00[12]). As to the meaning of “display”, because the term is not statutorily defined, the Court must “ascertain the legislative intent and construe the pertinent statutes to effectuate that intent”. (People v. Roberts, 31 NY3d 406, 418 [2018][citing In re M.B., 6 NY3d 437, 447 [2006]). “As 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. Roberts, 31 NY3d at 418 [citing People v. Golo, 26 NY3d 358, 361 [2015]). “If the words chosen have a ‘definite meaning, which involves no absurdity or contradiction, then there is no room for construction and courts have no right to add or take away from that meaning’”. (People v. Roberts, 31 NY3d at 418 [citing People v. Robinson, 95 NY2d 179, 182 (2000)]). Absent a statutory definition, dictionary definitions serve as “useful guideposts” to determine the word’s “ordinary” and “commonly understood meaning”. (See, People v. Aleynikov, 31 NY3d 383, 397 [2018]). “This follows from the principle that, generally, unless a contrary intent is clear, lawmakers employ ‘words as they are commonly or ordinarily employed’”. (People v. Aleynikov, 31 NY3d at 397). The word “display” has been defined as “to put or spread before the view”; “to make evident”; “to exhibit ostentatiously”. (Merriam-Webster Online Dictionary, “display”, available at [https://www.merriam-webster.com/dictionary/display]). Oxford English Dictionary defines “display” as to “[m]ake a prominent exhibition of something in a place where it can easily be seen”. (Oxford English Dictionary, “display”, available at [https://www.lexico.com/en/definition /display]). The Court finds that the ordinary and commonly understood meaning of the word “display” is to “show” or “make something evident”. (People v. Smith, 29 NY3d 91, 103 [2017][Dissent]). The Court has considered the language used in the Felony Complaint, together with the additional hearsay facts provided by the People at the Sixth-Day Appearance, including, inter alia, that the AO held a switchblade knife to the victim’s stomach in an effort to forcibly remove the victim’s jacket. The Court finds that such alleged conduct attributed to the AO goes beyond merely “showing” or “exhibiting” a deadly weapon. Considering that such allegations were set forth in the sworn, signed felony complaints and reiterated by the People during their presentation at the Sixth Day Appearance, the Court finds that the People sufficiently proved “by a preponderance of the evidence”, that for the purposes of retaining this case in the Youth Part for all future proceedings, the AO “displayed” a deadly weapon. (CPL §722.23[2][c][ii]). The Court is not persuaded to find otherwise based on defense counsel’s arguments addressing the legal sufficiency of the Felony Complaint and counsel’s reliance on the case People v. Sans, 26 NY3d 13 [2015] in support thereof. As discussed above, the purpose of the “sixth-day appearance” is for the Court to review the accusatory instrument as well as “any other relevant facts” submitted by the parties to determine whether the People proved, by a preponderance of the evidence, the presence of at least one of three factors that will disqualify the AO’s case from proceeding toward removal to the Family Court. The purpose of the “sixth-day appearance” is not for defense counsel to challenge the legal sufficiency of the accusatory instrument. The Court would entertain such a challenge if the appropriate application were made to the Court, in writing. For the foregoing reasons, the People’s application to disqualify the AO’s case from removal to the Family Court is granted, and this case will remain in the Youth Part for all future proceedings. This constitutes the opinion, decision and order of this Court. Dated: November 5, 2020
