People v. E.S.B.

DECISION AND ORDER The defendant in this matter, E.S.B. [D.O.B. 00/00/0000], is charged as an Adolescent Offender (“AO”)¹ in the Youth Part of the County Court in Nassau County. He is charged by way of a felony complaint with one (1) count of Assault in the Second Degree [Penal Law §120.05]. The within Decision and Order is issued following the Court’s review of the accusatory instruments, argument by all 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 or about November 1, 2020, at approximately 1:30 AM, in H., N.C., New York. The AO was arrested on November 1, 2020 and was arraigned by an Accessible Magistrate on November 1, 2020. He appeared in the Youth Part on November 2, 2020, at which time the statutory “Sixth-Day Appearance” in this matter was scheduled for November 6, 2020. On November 6, 2020, the Court conducted a “Sixth-Day Appearance” pursuant to CPL §722.23(2) to determine, after reviewing the accusatory instrument and “any other relevant facts” submitted by the parties, whether the People proved that the AO’s case is disqualified from automatic removal to the Family Court. (CPL §722.23[2][a] through [c]). The People’s burden at the “Sixth-Day Appearance” is to prove, “by a preponderance of the evidence”², the presence of at least one of three statutory factors which would warrant retaining the case in the Youth Part. The three statutory factors include, as relevant to this case, that, “as set forth in the accusatory instrument: [i] the defendant caused significant physical injury to a person other than a participant in the offense”. (CPL §722.23[2][c]). Both parties may be heard and submit information relevant to the Court’s determination. (CPL §722.23[2][b]). If the Court finds that the People have satisfied their burden, then the case will not proceed towards automatic removal to the Family Court as otherwise provided for under CPL §722.23[1][a], and the case remains in the Youth Part for all future proceedings. SIXTH-DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT At the “Sixth-Day Appearance” in this case, the People did not call any witnesses or introduce any documents into evidence. They relied upon the allegations contained in the accusatory instrument and supplemented those allegations with additional hearsay-based facts. Counsel for the AO also did not call any witnesses or introduce any documents into evidence. The AO’s counsel asserted arguments based off of the allegations in the accusatory instrument and the additional hearsay-based facts supplied by the People. FACTUAL ALLEGATIONS It is alleged in the Felony Complaint that on or about November 1, 2020 at about 2:23 AM, at a location in H., N.C., New York, H. Police Officers responded to a 911 call for an assault in progress. The officers responded to the location and found the victim of an apparent assault laying on the sidewalk. The victim of the assault allegedly sustained multiple contusions and abrasions to the head, face and body. The victim was also allegedly struck with a piece of concrete in the face. A witness provided descriptions of the subjects who were allegedly responsible for the assault. The victim was taken by ambulance to LIJ hospital. While canvassing the area for the subjects allegedly responsible for the assault, the responding officers observed a group of people fitting the description of those allegedly responsible individuals. The officers observed approximately 5 subjects approach a parked Grey Nissan Rogue with out-of-state registration. A female was observed sitting in the rear passenger side of the vehicle; a co-defendant entered the driver side of the vehicle and the AO entered the front passenger side of the vehicle. The officers observed that the other subjects were trying to enter the vehicle from the passenger side. The subjects allegedly realized that the unmarked vehicle was approaching, and they immediately walked off, entered a driveway and hid behind parked vehicles. One of the responding officers stayed with the Nissan Rogue and the other officer approached those subjects who were hiding behind the vehicles. The responding officers blocked the rear of the vehicle and approached the vehicle. The individuals who were hiding behind vehicles were stopped and questioned by one set of officers, and the other three subjects, including the AO, were removed from the vehicle by a second set of police officers. The victim was brought to the scene by LIJ ambulance and a show up was conducted for all the subjects. The show up was positive for three individuals, including the AO. All three defendants were transported to the H. Police Department for arrest processing. Based on additional facts provided by the People at the “Sixth-Day Appearance”, at approximately 2:30 AM, the AO was outside of a building on H. Street, in H., N.C., New York, with approximately two (2) females and four (4) to five (5) other males. The victim approached the building and was attempting to enter the building. The victim allegedly then greeted the AO, saying something along the lines of “what’s up buddy”. The AO responded that he is not the victim’s friend or buddy and the AO then prevented the victim from entering the building. The victim then allegedly called one or two of his friends to come and when those friends arrived, the AO and his male companions began chasing the victim and his friends. The victim’s two friends got away, but the victim was allegedly caught by the AO and his friends. The AO and his co-defendants allegedly began attacking the victim, kicking him, punching him, about the head, face and body. During the attack, one of the individuals in the AO’s group (the victim cannot at this point specify who it was), picked up a brick and repeatedly struck the victim in the head with the brick. The victim was taken to NUMC. He allegedly had lacerations and contusions to his head, a bloody nose, a swollen lip; he allegedly experienced difficulty seeing and severe headaches. According to the People, the victim continued to experience difficulty seeing and severe headaches for five (5) days after the incident. 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: the AO “caused significant physical injury to a person other than a participant in the offense”. (CPL §722.23[2][c]). The statute provides that both parties may be heard and submit information relevant to the Court’s determination. (CPL §722.23[2][b]). 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]). For instance, the Court notes that CPL §722.23(b) contains no language requiring that the “sixth-day appearance” include any testimonial evidence or even, as required on a motion to prevent removal of the action “allegations of sworn fact based upon personal knowledge of the affiant”. (CPL §722.23[1][b]). It has been this Court’s practice, and the apparent practice of other Youth Part courts, to consider not only the accusatory instruments and any supporting depositions, but to also consider hearsay evidence. (People v. B.H., 62 Misc.3d 735, 739-740 [Nassau County Ct 2018]; People v. J.W., 63 Misc.3d 1210[A] [Sup Ct, Kings County 2019]; People v. Y.L., 64 Misc.3d 664 [Monroe County Ct 2019]). The parties disagree as to whether the People sufficiently proved that the AO caused “significant physical injury” to the victim. CPL §722.23 does not define “significant physical injury”. The Court first referenced dictionary definitions of the term “significant” to determine the term’s “ordinary” and “commonly understood meaning”. (See, People v. Aleynikov, 31 NY3d 383, 397 [2018]³). However, the Court was unable to “ascertain the legislative intent and construe the pertinent statutes to effectuate that intent”⁴ relying exclusively on the dictionary definitions of the term “significant”⁵, and thus, has reviewed the legislative history of the 2017 RTA legislation for further assistance in construing the statutory provision. (People v. Roberts, 31 N.Y.3d 406, 423 [2018]; People v. Andujar, 30 N.Y.3d 160, 166 [2017]). Based on the RTA’s legislative history, the legislators intended that the “significant physical injury” standard would fall somewhere between “physical injury” and “serious physical injury”, both of which are already defined in the Penal Law⁶. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], p. 48). They recognized that the “significant physical injury” standard would ultimately be a “hybrid” standard, to be defined by the courts. (Assembly Record, pp. 26-27). They anticipated that “significant physical injury” would be accompanied by “major aggravating factors, such as bone fractures [and] injuries requiring surgery…” and that a “significant physical injury” would be “something more serious than a bruise, but less serious than a disfigurement”. (Assembly Record, pp. 26-27). Contrary to arguments advanced by the AO’s counsel, the Court finds that the injuries sustained by the victim likely rise to the level of “significant physical injury”. While the injuries allegedly sustained may not include any of the “major aggravating factors” specifically proposed by the legislators, the Court nonetheless finds that experiencing headaches and difficulty seeing over a number of days, in combination with the victim’s bloody nose, swollen lip, lacerations and contusions, is likely more serious than a bruise or “substantial pain” otherwise sustained with a “physical injury”. However, even assuming that the victim’s injuries constitute “significant physical injuries”, the Court finds that the People failed to satisfy their burden in proving, “by a preponderance of the evidence”, that the AO “caused” the victim to sustain “significant physical injuries”. First, the allegations in the accusatory instrument alone are wholly insufficient to satisfy the People’s burden, as there are no specific allegations addressing this AO’s alleged role or participation in the alleged assault. Second, while the People proffered additional hearsay-based facts at the “Sixth-Day Appearance”, such facts were still too general and broad to convince the Court that this AO “caused” the victim to sustain significant physical injuries. Instead, the People contended only that this AO and his co-defendants allegedly kicked and punched the victim about his head, face and body, without attributing any specific conduct to the AO. Particularly material to the Court’s determination is the People’s inability to specify whether this AO was the individual who allegedly struck the victim in his face with the brick/piece of concrete. To the extent that the victim sustained “significant physical injuries”, it may be that the most “significant” of those injuries were caused by being struck in the face with the brick/piece of concrete. The Court has reviewed the accusatory instrument and assessed the People’s presentation at the “Sixth-Day Appearance”, and finds that, even assuming the veracity and accuracy of the factual allegations contained in the Felony Complaint⁷ and those additional hearsay-based facts offered by the People at the “Sixth-Day Appearance”, the Court is not convinced that “it is more probable than not” that this AO caused the victim to sustain a “significant physical injury”. Accordingly, this case will proceed toward removal to the Family Court absent a motion from the People opposing such removal based on the existence of “extraordinary circumstances”. (CPL §722.23[1][a] through [1][d]). This constitutes the opinion, decision and order of this Court. Dated: November 20, 2020