People v A.T.

[*1] People v A.T. 2019 NY Slip Op 29039 Decided on January 24, 2019 Family Court, Erie County Carter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 24, 2019
Family Court, Erie County

The People of the State of New York, Plaintiff,

against

A.T., Defendant.



FYC-70012-19/001



Meredith Mohun, Esq., (Assistant District Attorney)

Lana V. Tupchik, Esq., (for the Defendant)
Kevin M. Carter, J.

The People having filed a felony complaint against A.T. ("Defendant"), alleging the Defendant committed a robbery on January 18, 2019, and having orally moved pursuant to Criminal Procedure Law § 722.23(2) et seq. for a determination that this action shall not proceed in accordance with § 722.23(1) et seq., and for an order preventing removal of this action to the [*2]juvenile delinquency part of Erie County Family Court, and Meredith Mohun, Esq. (Assistant District Attorney) having appeared on behalf of the People, in support of the motion, and Lana V. Tupchik, Esq., having appeared on behalf of the Defendant, in opposition to the motion, and upon the reading of the felony complaint, and oral argument having been held on January 24, 2019, and due deliberation having been had, the Court makes the following written findings and determination pursuant to CPL § 722.23(2)(c):

The action was commenced by way of a felony complaint which charges the Defendant with Robbery in the 2nd Degree, a Class C Felony, as defined by Penal Law § 160.10(2). It is alleged that the crime occurred on January 18, 2019.

Defendant was born on May 23, 2002. The Defendant was brought before Youth Part because he was sixteen years old when the alleged crime was committed. Thus, under the Raise the Age legislation ("RTA"), Defendant is considered an "Adolescent Offender."

Defendant was arraigned on January 18, 2019. On January 24, 2019, the People moved pursuant to CPL § 722.23(2)(c)(ii) for a determination by the Court that during the alleged robbery the Defendant displayed a firearm, shotgun, rifle or deadly weapon as defined by the penal law, and as such, the matter should not proceed in accordance with CPL § 722.23(1) and should not be removed to the juvenile delinquency part of Erie County Family Court.

In support of its application, the People argued that the accusatory instrument sets forth a claim that Defendant used or threatened the use of physical force and displayed "a black & silver BB gun" during the commission of the act. The People argue that would satisfy the requirement of CPL § 722.23(2)(c)(ii) by a preponderance of the evidence.

The relevant factual part of the felony complaint states the following:

The defendant, while at 13 Chester Street, did steal property, to wit: one hundred dollars in cash, by force, in that the defendant did use, or threaten the use of physical force and did display what appeared to be a handgun, to wit: a black & silver BB gun, in that the defendant did place a black & silver BB gun to the complainant's head, demanding all his money. The complainant, Christopher Marshall, did hand over one hundred dollars in cash to the defendant. Officers responding to a 911 robbery call where the complainant, a cab driver, was robbed by force. The defendant was apprehended at 173 Woodlawn by Officer Padriac Allman. Officer Allman did recover a black & silver BB gun in the driveway of 173 Woodlawn where the defendant threw it. Officer Stephen Schulz did recover one hundred dollars in cash from the defendant's front left pocket and was returned to the complainant. Officer Mitchell R. Thomas did submit said BB gun into evidence.

CPL § 722.23(2)(c)(ii) mandates that the People show by a preponderance of the evidence that the felony complaint sets forth Defendant displayed a firearm, shotgun, rifle or deadly weapon as defined by the penal law in furtherance of the offense charged. Preponderance of the evidence standard requires evidence sufficient to "produce a reasonable belief in the truth of the facts asserted." (58A NY Jur 2d Evidence and Witnesses § 978)

A BB gun is a "deadly weapon" as defined by NYS Penal Law § 10.00(12). See, People v. Akinlawon, 158 AD3d 1245 (4th Dept 2018). Here, it is alleged that Defendant placed a black & silver BB gun to the complainant's head and demanded all his money. Thereafter, Officer Allman recovered the black & silver BB gun in the driveway of 173 Woodlawn where the Defendant is alleged to have thrown it.

Hence, the Court determines the People have sufficiently pled facts that would cause a reasonable person to believe the Defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of the offense. As such, the matter shall not proceed in accordance with CPL § 722.23(1) et seq. and shall remain in Youth Part.

So, Ordered.

_____________________________________

HON. KEVIN M. CARTER