DECISION AND ORDER The defendant in this matter, M.S. (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 Court Information with one count of Criminal Possession of a Weapon in the Second Degree [Penal Law §265.03(3)]; one count of Criminal Possession of a Weapon in the Fourth Degree [Penal Law §265.01(1)]; 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)(c) 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 June 21, 2021, at about 11:30 AM, at a location in H., Nassau County, New York. The AO was arrested on June 21, 2021 and arraigned on June 22, 2021; at which time the Court scheduled the statutory “sixth-day appearance” in this matter for June 28, 2021. 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 loaded firearm in furtherance of the crimes with which he has been charged. The People did not call any witnesses. Their presentation consisted of reading from the accusatory instrument and reading from the supporting depositions of the complainant, as well as from the depositions of the investigating officer and detective. A copy of the operability report (People’s Exhibit 1) was entered into evidence on consent, as was a copy of the AO’s written statement of admission (People’s Exhibit 2). The People elaborated upon the allegations in the accusatory instrument with argument and additional hearsay-based facts. The AO, through counsel, opposed the People’s presentation and argued that the People failed to meet their burden for retaining the case in the Youth Part. The AO’s counsel did not call any witnesses or introduce any documents into evidence. Counsel’s opposition consisted primarily of arguments based on the allegations in the accusatory instrument. Counsel also made arguments which related to the AO’s custody. FACTUAL ALLEGATIONS It is alleged in the accusatory instrument that on or about June 21, 2021 at about 11:30 AM, in the area of 00 M. Street in H., Nassau County, New York, during a confrontation, the AO displayed a handgun, which is gray in color with a black handle, and threatened to kill the victim, C.P.-S. It is further alleged that the victim flagged down a passing uniformed officer, PO P., who then called for assistance and conducted a small canvass that resulted in the apprehension of the AO and recovery of a fully loaded grey 22 Rugar wrangler LR serial # 000-0000 inside of a tan backpack that was on a couch to the left of where the AO was sitting inside of the 00 M. St. Barbershop. The victim affirmed, in pertinent part, that on the day in question, the victim was with his father in front of a location in H., when the AO approached, pulled out a handgun, and threatened to shoot the victim and his father. Additionally, the supporting depositions of the investigating officer and detective detailed how they allegedly pulled the handgun from the AO’s backpack. Pursuant to the operability report offered by the People and entered into evidence on consent (People’s Exhibit 1), the functionality of the weapon was tested on June 25, 2021 and the weapon was determined to be operable, as was the ammunition that was recovered from the weapon. The AO’s written statement of admission that was offered by the People and entered into evidence on consent (People’s Exhibit 2) included the following statements “I then went back into the barbershop to get my tan backpack which contained a gun that a [sic] bought for $600.00…. I walked out [of] [sic] the barbershop and pulled the gun out a little bit in order to scare him but I never pointed it at him”. (People’s Exhibit 2). In response to the People’s presentation, defense counsel alleged that the victim first struck the AO in the face with brass knuckles, that the AO subsequently pulled out the gun “a little bit” to scare the victim, and that he never intended to hurt anyone. 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…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”. In conducting a “sixth-day appearance” to determine whether a case should be retained in the Youth Part, the Court may consider the accusatory instruments, any supporting depositions, and hearsay evidence. (People v. B.H., 62 Misc3d 735, 739-740 [Nassau County Ct 2018]); People v. Meggie, 184 Misc2d 883, 886 [Nassau Dist Ct 2000]; People v. J.W., 63 Misc3d 1210[A] [Sup Ct, Kings County 2019]). 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 firearm…or 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, the accusatory instrument alleges, and the People confirmed with additional hearsay-based facts and evidence at the “sixth day appearance”, that the AO removed a loaded firearm from his backpack so that the victim could see it, and threatened the victim with said firearm. A “firearm” is defined under the Penal Law to include “any pistol or revolver”1, and a “deadly weapon” is defined under the Penal Law to include “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged…”2 The term “display” is not statutorily defined. Accordingly, the Court must “ascertain the legislative intent and construe the pertinent statutes to effectuate that intent”. (People v. Roberts, 31 NY3d 406, 418 [2018]). Giving effect to the “plain meaning”3 of the term “display”, and having used the “dictionary definition” as a “guidepost” to determine the “ordinary” and “commonly understood meaning” of the word4, the Court finds that to “display” something means to “put or spread before [one's] view”; to “prominently exhibit something” where it can easily be seen, and/or “to make evident”5. The Court has considered the language used in the accusatory instrument, the additional hearsay-based facts asserted by the People at the “sixth-day appearance”, and the documents entered into evidence. The Court is particularly mindful of the victim’s sworn statement that the AO pulled out a handgun so that the victim could see it and threatened to shoot the victim and his father. Likewise, the Court notes the AO’s own sworn statement indicating that he “pulled the gun out [from his backpack] a little bit in order to scare” the victim, and the Court notes that the operability report entered into evidence indicates that the subject gun was loaded and operable. For the purpose of the “sixth-day appearance” inquiry, the Court is “proceeding upon the assumption of the veracity and accuracy of the factual allegations contained” in the accusatory instrument and the additional hearsay-based facts recited by the People at the “sixth-day appearance”, particularly since the AO failed to controvert any such factual allegations. (See, e.g., People v. Meggie, 184 Misc2d at 887). In consideration of the foregoing, the Court finds that the People satisfied their burden for the “sixth-day appearance” of proving “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 firearm…or deadly weapon…in furtherance of the offenses with which he has been charged”. (CPL §722.23[2][c][ii]). The Court is not persuaded to find otherwise based on defense counsel’s arguments that the AO never “intended” to shoot the gun at anyone, but instead that he just intended to scare the victim. The Court finds that such arguments, and the other arguments asserted by the AO’s counsel in opposition, are not germane to the issue raised at the “sixth-day appearance” and if anything, may be issues to be considered by the fact-finder. For the foregoing reasons, the People’s 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: July 6, 2021
