People v D.R.

[*1] People v D.R. 2020 NY Slip Op 50085(U) Decided on January 23, 2020 County Court, Nassau County Singer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2020
County Court, Nassau County

The People of the State of New York, Plaintiff,

against

D.R., Adolescent Offender.



00000-00/000



Hon. Madeline Singas, Nassau County District Attorney,

Lee Genser, Esq.

Mitchell Barnett, Esq.

Counsel for D.R.
Conrad D. Singer, J.

The defendant in these matters, D.R. (D.O.B. 00/00/02) is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. He was charged by way of a felony complaint (FYC-00000-00/000)[FN1] with one count of Attempted Murder in the Second Degree (Penal Law §§ 110/125.25), a class B Felony, and with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), a class C Felony. The within Decision and Order is issued following the Court's review of the accusatory instrument, arguments by counsel and other relevant facts pursuant to CPL 722.23(2)(b).

The AO has been charged in connection with an incident alleged to have taken place on December 27, 2019, at about 6:54 PM in H., X.X, New York. The AO was arrested on January 8, 2020 and was arraigned in the Youth Part of the County Court, Nassau, on January 8, 2020. On January 14, 2020, the sixth day after the AO's arraignment, the Court conducted an appearance pursuant to CPL § 722.23(2)(a) for the purpose of reviewing the accusatory instrument and determining whether the AO's case is disqualified from automatic removal to the Family Court.

Under CPL § 722.23(2)(c), the Court is required to order an action to proceed with automatic removal to the Family Court unless, during the sixth-day appearance, the District Attorney's office proves, by a preponderance of the evidence, one or more of three statutory [*2]aggravating factors as set forth in the accusatory instrument:

"(i) the defendant caused significant physical injury to a person other than a participant in the offense; or(ii) the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense; or(iii) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual conduct as defined in section 130.00 of the penal law."

(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 People satisfy their burden, then the case is disqualified from proceeding towards automatic removal to the Family Court provided for under CPL § 722.23(1)(a).

SIXTH

DAY APPEARANCE FOR REVIEW OF ACCUSATORY INSTRUMENT

At the sixth-day appearance conducted by this Court on January 14, 2020, the People did not call any witnesses and did not introduce any documents into evidence. They further developed the allegations set forth in the felony complaint by asserting additional hearsay-based facts, including those based upon conversations with law enforcement, with the victim and with another witness. The People also presented arguments based on the allegations in the accusatory instrument. Counsel for the defense did not call any witnesses, introduce any documents into evidence, or assert any arguments in opposition to the People's presentation.

FACTUAL ALLEGATIONS

It is alleged in the felony complaint that on or about December 27, 2019, at about 6:54 PM, at an address in H., X.X., New York, the AO was in possession of a loaded revolver handgun. It is further alleged that while in possession of said firearm and attempting to cause death, the AO fired one (1) shot directly at the victim, striking him in the left side of his upper chest. It is further alleged that the victim suffered lung and spinal cord damage requiring numerous surgeries.

At the sixth-day appearance, the People further asserted that the AO was present at the place of occurrence and that he fired one (1) shot to the victim's chest, at point blank range. The People additionally asserted that the victim continued to be hospitalized at the time of the sixth-day appearance. The People argued that removal to the Family Court is inappropriate due to the circumstances of this case.

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 have proved by a "preponderance of the evidence", the presence of one or more of three statutory factors "as set forth in the accusatory instrument". (CPL § 722.23[2]). "To establish a fact by a preponderance of the evidence means that the fact is more likely than not to have occurred". (Matter of Beautisha B., 115 AD3d 854, 854 [2d Dept. 2014]; People Giuca, 33 NY3d 462, 486 [2019] [in dissent]).

The statutory provision governing the sixth-day provision 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]). However, it has been this Court's practice, and the apparent practice of other Youth Part courts, to consider the accusatory instruments, supporting depositions, and, as is the case "with most pretrial hearings", to also consider hearsay evidence. (People v. B.H., 62 Misc 3d 735, 739-740 [Co. Ct., Nassau County [*3]2018]; People v. J.W., 63 Misc 3d 1210[A] [Sup. Ct. Kings Cty. 2019]; People v. Y.L., 64 Misc 3d 664 [Co. Ct. Monroe Cty. 2019]).

In this case, the issue is whether the People have proved by a "preponderance of the evidence" that the AO "caused significant physical injury to a person other than a participant in the offense". (CPL § 722.23[2][c][i]). Based on the Court's review of the accusatory instrument and the People's presentation during the sixth-day appearance, the AO allegedly fired one shot at the victim at point-blank range, striking him in the left side of his upper chest. The AO allegedly caused the victim to sustain lung and spinal cord damage requiring numerous surgeries. The victim was still hospitalized for his injuries at the time of the sixth-day appearance, which was conducted more than two weeks after the alleged shooting.

There is no statutory definition for the term "significant physical injury". (See, CPL § 722.23). However, the Court's examination of the legislative history for the "Raise the Age" legislation reveals that legislators intended "significant physical injury" to fall somewhere between "physical injury" and "serious physical injury", both of which are already defined in the Penal Law. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], p. 48)[FN2] .

To that end, legislators anticipated that "significant physical injury would include major aggravating factors, such as bone fractures [and] injuries requiring surgery ". (Assembly, Record, p. 26). It was further anticipated that a "significant" physical injury would be found where there was "something more serious than a bruise, but less serious than a disfigurement". (Assembly Record, p. 27).

In this case, the Court finds that the People have satisfied their burden in establishing, by a preponderance of the evidence, that the AO caused the victim to sustain a "significant physical injury", based on their showing that the victim sustained lung and spinal cord damage requiring not just one, but "numerous surgeries" and requiring him to be hospitalized for an extended period of time.

Accordingly, because the People have satisfied their burden under CPL § 722.23(2)(c), the matter is retained in the Youth Part.

This constitutes the opinion, decision and order of this Court.

DATED: Hempstead, New York

January 23, 2020

HON. CONRAD D. SINGER, A.J.S.C.

Nassau County Court, Youth Part Footnotes

Footnote 1:On January 17, 2020, the AO was indicted. The charges in the initial accusatory instrument were superseded by one count of Attempted Murder in the Second Degree [Penal Law §§ 110/125.25(1)]; one count of Assault in the First Degree [Penal Law § 120.10(1)]; two counts of Criminal Possession of a Weapon in the Second Degree [Penal Law §§ 265.03 (1)(b) and 265.03 (3)]; one count of Criminal Possession of a Firearm [Penal Law § 265.01-b (1)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law § 265.09 (1)(a)]; and one count of Criminal Use of a Firearm in the Second Degree [Penal Law 265.08 (1)]. The AO is scheduled to be arraigned on the indictment on January 23, 2020.

Footnote 2: To wit, "physical injury" is defined as "impairment of physical condition or substantial pain", [Penal Law § 10.00(9)], while "serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" [Penal Law § 10.00(10)].