DECISION AND ORDER The defendant in this matter, E.H. (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 Murder in the Second Degree [Penal Law §125.25(1)], a class A-1 felony, and by way of a second felony complaint with one count of Criminal Possession of Stolen Property in the Fourth Degree [Penal Law §165.45(5)], a class E felony. 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 charge against the AO of Murder in the Second Degree arises from an incident alleged to have occurred on or about March 1, 2021, at approximately 3:10 PM at a location in F., Nassau County, New York. The charge against the AO of Criminal Possession of Stolen Property in the Fourth Degree arises from an incident alleged to have occurred on or about March 6, 2021, at about 10:56 PM, at a location in U., Nassau County, New York. The AO was arraigned by an Accessible Magistrate on April 10, 2021, at which time he was remanded without bail. He first appeared in the Youth Part on April 12, 2021; at which time the Court scheduled the statutory “sixth-day appearance” in this matter for April 14, 2021. (CPL §722.23[2]). CPL §722.23(2) requires that the AO’s case proceed towards removal to the Family Court unless the Court finds during the “sixth-day appearance” that the People prove, by a preponderance of the evidence, the existence of one or more statutory aggravating factors. Such factors include, as relevant in this case, that: “[i] the defendant caused significant physical injury to a person other than a participant in the offense”; and/or 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][i] and [ii]). 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 due to the presence of two statutory aggravating factors. First, that the AO “caused significant physical injury” in that the victim in this case is dead; and second, that this AO “displayed a firearm…”, in that the victim in this case was shot. In so arguing, the People relied upon the allegations set forth in the Felony Complaint, which they further developed with argument and additional hearsay-based facts. The AO, through counsel, opposed the People’s presentation and argued that they failed to meet their burden for retaining the case in the Youth Part. The AO’s counsel noted that she was constrained by the limited discovery she had received prior to the “sixth-day appearance” and argued that, relying solely on the Felony Complaint, which is the focus of the Court’s “sixth-day appearance” review, the AO did not personally shoot the victim; it is alleged only that he was present at the time of the shooting. FACTUAL ALLEGATIONS It is alleged in the Felony Complaint that on March 1, 2021, at 3:10 PM, at 701 S M.S. in F., Nassau County, New York, the AO, while acting in concert with others not yet arrested, including an individual referred to as “Unapprehended 1″, did intentionally cause the death of the victim, D.G.-C., by shooting him in the head. It is further alleged in the Felony Complaint that the AO knows “Unapprehended 1″ to be an MS-13 gang member and has seen him with a gun on multiple occasions. It is further alleged that “Unapprehended 1″ is known to Nassau County Police Department and Nassau County District Attorney as an MS-13 gang member, and that the AO was present and observed “Unapprehended 1″ shoot a rival gang member approximately 3 months earlier. It is further alleged that the AO knew that “Unapprehended 1″ was having a gang-related dispute with a person by the name of D. The AO allegedly drove one of two vehicles to the subject location, “Unapprehended 1″ was an occupant in the AO’s vehicle, and the victim was an occupant in the other vehicle. It is further alleged that, before arriving at the scene of the incident both vehicles stopped, all of the occupants exited the vehicles and conversed, and then returned to their respective vehicles. The AO then allegedly drove one of the vehicles directly to the scene and all of the occupants of his vehicle exited and walked into the woods. It is alleged that the AO was then a few feet away from the group before he heard a gunshot, afterward the AO and all occupants, with the exception of the victim, rushed to their cars. The AO then allegedly drove one of the vehicles with several occupants from the park and then allegedly left the vehicle parked on a side street in U. It is further alleged that the following day, the AO met “Unapprehended 1″, who referenced the prior day and said, “it had to be done”. The People further contended at the “sixth-day appearance” that on the date of the incident, the AO, along with approximately eight other males, murdered the victim in C.M. Park in F., Nassau County. (Transcript, April 14, 2021 ["TR"], 3:4). They further alleged that there were two carloads of MS-13 members that day: some drove in an Infiniti, which picked up the victim, and others were in the Impala, which was driven by the AO. (TR, 3:7). They further alleged that an individual named “M.M.” was one of the MS-13 members who was in the vehicle driven by the AO, that Mr. M. is the leader of the H. sect of MS-13, that the AO associates with Mr. M. and knows that Mr. M. carries a gun. (TR, 3:11). They further alleged that the AO knew that Mr. M. had a gang-related issue with D., the victim in this case. (TR, 3:14). The People further alleged at the “sixth-day appearance” that on the day of the incident, the AO drove in the Impala to a gas station in W.H., where he met up with occupants of the second vehicle, the Infinity. (TR, 4:8). The AO then allegedly drove the Impala to U. where, again, he met up with all the occupants of the second car, and then all of the occupants of both vehicles, including the victim, exited the cars and converged on the sidewalk of S. Street before returning to their respective cars. (TR, 4:13). The People further alleged that the AO was shown surveillance video from S. Street, and that he identified himself and other people, including M.M., in that surveillance video. They further alleged that around 2:30 PM on the day of the incident, the AO used his cell phone to search the internet for “parks in F., parks in F. by the water”. (TR, 4:17). The AO then allegedly drove the Impala, which was followed by the Infiniti, to C.M. Park in F., and pulled into the park at 2:55 PM. (TR, 4:23). At the park, the occupants of both vehicles allegedly exited the vehicles, walked into the park, through the woods, and into a clearing on the beach, where the victim was killed with one gunshot to his head. (TR, 4:25). The AO then allegedly rushed back to the car with all of the other occupants (with the exception of the victim), and he drove the Impala away from the scene. (TR, 5:3). The People further alleged that, on the day after the incident, the AO used his phone to conduct an internet search for “Surenos 13″, “Surenos 13 rivals”, “body found, Long Island, F., C.M. Park, shot dead, F.”. (TR, 5:10). The People further contended that the charge against the AO for Criminal Possession of Stolen Property in the Fourth Degree, which was charged by separate Felony Complaint, was based on the allegation that the Impala which the AO drove to and from the alleged murder was a stolen vehicle. (Tr, 17:3). CONCLUSIONS OF LAW 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 evidence1 as set forth in the accusatory instrument, the presence of one or more of three statutory factors that will disqualify the AO’s case from proceeding toward removal to the Family Court. The statutory factors include, as relevant here: 1) the AO “caused significant physical injury to a person other than a participant in the offense”; and/or 2) 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][i] and [ii]). Under CPL §722.23(2)(b), “[b]oth parties may be heard and submit information relevant to the [Court's] determination” at the “sixth-day appearance”. (CPL §722.23[2][b]). In conducting the “sixth-day appearance”, it has been this Court’s practice, and the apparent practice of Youth Part courts in other jurisdictions, to consider the accusatory instruments, any supporting depositions, and to also consider hearsay evidence and arguments orally relayed by the attorneys. (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 People’s first argument for retaining this AO’s case in the Youth Part is based on the statutory aggravating factor that this AO “caused significant physical injury to a person other than a participant in the offense”. (CPL §722.232[2][c][i]). The Court finds, and the parties do not dispute, that the victim’s death qualifies as “significant physical injury”2. Accordingly, the determinative issue in this case is whether the AO “caused” the victim’s “significant physical injury”, i.e., whether the AO “caused” the victim’s death. The People argued extensively at the “sixth-day appearance” that the AO “caused” the victim’s death under a theory of accessorial liability. The People argued that they could not “definitively” say that the AO was not the individual who pulled the trigger and shot the victim in the head, but, even assuming that he did not personally shoot the victim, his actions in connection with the murder rose to the level of “causing” his death. Defense counsel argued in opposition that the People failed to establish the AO’s culpability under a theory of accessorial liability and cited to the definition of “Criminal Liability for Conduct of Another” as set forth under Penal Law §20.003. As the parties disagree about whether the AO “caused” the victim’s death, the Court is therefore tasked with determining the meaning of “cause” as set forth in CPL §722.232[2][c][i]. Accordingly, as “in every case involving statutory interpretation”, the Court must ascertain the legislative intent and construe the pertinent statutes to effectuate that intent”. (People v. Roberts, 31 NY3d 406, 418 [2018]). “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]). “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). The Court has referenced several dictionaries to ascertain the “plain and ordinary meaning” of the word “cause”. (People v. Andujar, 30 NY3d 160, 163 [2017] [dictionary definitions are regarded as "useful guideposts" to determine the meaning of statutory language]; see also, People v. Roberts, 31 NY3d at 424). Having done so, the Court finds that the “plain and ordinary meaning” of the word “cause” is “to make something happen”4, or to “bring about an effect or a result” 5. As the word “cause” has a “definite meaning” involving “no absurdity or contradiction”, the Court will not at this time determine whether “accessorial liability” principles apply when determining whether an AO has “caused significant physical injury” for the purposes of the “sixth-day appearance”. (See, People v. Roberts, 31 NY3d at 418). For the purpose of the “sixth-day appearance” inquiry, the Court is proceeding on the assumption of the veracity and accuracy of the factual allegations contained in the Felony Complaint and those additional hearsay-based facts as offered by the People at the “sixth-day appearance”. (See, e.g., People v. Meggie, 184 Misc2d 883, 887 [Nassau Dist Ct 2000]). The Court has considered the factual allegations in the Felony Complaint, including, inter alia, that this AO drove one of two vehicles to the location where the murder occurred, as well as the additional factual allegations orally relayed by the People at the “sixth-day appearance”, including the internet searches that the AO allegedly conducted prior to and after the alleged murder; the AO’s relationship with M.M., an individual whom the People allege is the head of the H. sect of MS-13; the AO’s alleged knowledge that Mr. M. had a gang-related dispute with the victim and the AO’s alleged knowledge that Mr. M. carries a gun; the AO having allegedly identified himself and others involved in the murder from surveillance footage the day of the murder; and the AO not only driving multiple individuals to the scene of the alleged murder, but then also driving himself and others away from the scene after the murder. In consideration of the foregoing, the Court finds that the People have satisfied their burden of proving the presence of the aggravating factor that this AO “caused significant physical injury to a person other than a participant in the offense”. (CPL §722.232[2][c][i]). Accordingly, the case will not proceed towards automatic removal to the Family Court. Additionally, while the People also argued that the case should be retained in the Youth Part due to the presence of a second statutory aggravating factor, i.e., 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) only requires the presence of one aggravating factor for the case to be retained in the Youth Part. Therefore, the Court need not address the “display of a firearm” 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 and the case will remain in the Youth Part for all future proceedings. This constitutes the opinion, decision and order of this Court. Dated: April 22, 2021
