People v O.W.
Annotate this CaseDecided on June 5, 2020
County Court, Westchester County
The People of the State of New York,
against
O.W., As an Adolescent Offender, Defendant.
FYC-XXXX-20
For the People: Anthony A. Scarpino, Jr., District Attorney (Kerrie Williams and Edward Livingston, Assistant District Attorneys, of counsel).
For the Defendant: Richard Ferrante, Esq.
Arlene E. Katz, J.
Defendant O.W. is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court of Westchester County with one count of Attempted Assault in the First Degree with intent to cause serious physical injury with a weapon in violation of Penal Law §§ 110.00, 120.10 (1), a class C felony, and one count of Criminal Possession of a Weapon in the Second Degree — possession of a loaded firearm, in violation of Penal Law § 265.03 (3), also a class C felony. The People seek to retain the matter in the Youth Part. The defendant seeks removal to Family Court.
Pursuant to the Administrative Order for the Ninth Judicial District dated March 16, 2020 (Davidson, J.) and subsequent amendments thereto, the undersigned Family Court Judge is cross-assigned to the County Court and is a designated Youth Part Judge. It is under this authority that the undersigned determines the within matter.
The allegations in this matter are as follows. As relevant history, the prosecutor explained that on March 27, 2020, J.I.[FN1] stabbed M multiple times, causing his death. J.I. was subsequently arrested and charged with murder in the second degree, which is pending in the Peekskill City Court. J.I. has a twin brother, J.U. J.U. resides with his older brother, his mother P.B., and his mother's husband G.B. Following the killing of M, P.B. and her sons have reported incidents of harassment and threatening behavior by associates of M, including an attempt to kick in their apartment door. In addition, an object was thrown through their apartment window and threatening messages from an unknown sender were posted on social media.
On May 5, 2020, P.B. reported shots fired to the City of Peekskill Police Department. [*2]Upon investigation, a bullet hole was found in P.B.'s bedroom window and a second bullet hole was found in the window screen. A bullet hole was also found in her bedroom door. An examination of the sons' bedroom across the hall revealed a dent in the bedroom door frame and holes in the bedroom door and wall. External video surveillance showed a person wearing a dark top and light-colored pants fire a handgun three times toward the home of P.B., with muzzle flashes and the three gunshots clearly recorded. The individual was then shown running on the east side of the street. The patio area behind the apartment revealed three 9mm bullet casings with a head stamp reading "R-P 9mm Luger." Recovered video surveillance of the area revealed the shooter to be a tall person with a thin build wearing gray and black pants, a dark hooded sweatshirt, dark sneakers, red or maroon underwear visible above the belt line, and a dark satchel with white lettering. Additional video recovered from a nearby residence revealed a person matching the same description. A Peekskill City Police Officer viewed the video and recognized the individual as the defendant in this action. Additional video footage reveals the shooter removing a pistol from his waistband, putting it back, removing the pistol again, pointing it toward P.B.'s apartment and, from this view, firing four rounds with his right hand. Compiled video footage also shows the individual leaving the scene of the shooting and ultimately entering the residence at [number and street name redacted], which is the address of the defendant herein.
After securing a search warrant order, the following items were seized from the residence of the defendant on May 27, 2020: (1) red underwear; (2) black Champion satchel bag; (3) gray jeans; (4) red iPhone; (5) black iPhone; (6) black Alcatel phone; (7) black/blue Jordan sneakers; (8) two 9mm rounds; and (9) a Glock 9mm pistol.
The defendant herein was arrested on May 27, 2020 and initially remanded without bail. On May 29, 2020, the securing order was modified to order remand with bail of $2,500 cash and the imposition of a curfew. Upon posting bail that same day, the defendant was released.
Criminal Procedure Law § 722.23 (2) (a) provides that "[u]pon the arraignment of a defendant charged with a crime committed when he or she was seventeen years of age [constituting] a violent felony defined in section 70.02 of the penal law, the court shall schedule an appearance no later than six calendar days from such arraignment for the purpose of reviewing the accusatory instrument..." The action shall be removed to the Family Court unless, after reviewing the accusatory instrument, any other relevant facts, and hearing from the parties, the court determines by a preponderance of the evidence that one or more of the following are 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 other 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 contact as defined in section 130.00 of the penal law" (Criminal Procedure Law § 722.23 [2] [c] [i]-[iii]).The second enumerated factor is at issue in the instant action.
Penal Law § 265.00 (3) defines a firearm as "any pistol or revolver or a shotgun or a rifle or any weapon made from a shotgun or rifle or an assault weapon." The search of the defendant's residence lead to the discovery and seizure of a Glock 9mm pistol from a laundry basket and two 9mm rounds in the bedside drawer.
Both of the above charges are identified in Penal Law § (1) (b) as class C violent felony offenses. As such, an appearance was required within six days of the defendant's arraignment in [*3]accordance with Criminal Procedure Law § 722.23 to determine whether the action would be removed to Family Court or remain in the Youth Part. The action came on to be heard before this Court on June 2, 2020 as the assigned duty judge. Due to the ongoing COVID-19 public health crisis and in accordance with the administrative orders in effect at that time, the matter was heard via Skype with the Court and all parties and counsel appearing remotely. The defendant appeared with Richard Ferrante, Esq., assigned counsel. The People appeared by Kerrie Williams, Esq. and Edward Livingston, Esq.
For the People to meet their burden for this matter to remain in the Youth Part, they must prove by a preponderance of the evidence that the accusatory instrument sets forth that "the defendant displayed a firearm, shotgun, rifle or other deadly weapon as defined in the penal law in furtherance of such offense" (Criminal Procedure Law § 722.23 [2] [c] [ii]). "To establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred" (In re Beautisha B., 115 AD3d 854, 854 [2d Dept 2014]). Black's Law Dictionary defines preponderance of the evidence as
"[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other" (Black's Law Dictionary [11th ed 2019], preponderance of the evidence [Note: online version]).To establish the second qualifying factor, the People relied upon the supporting deposition of P.B., the search warrant affidavit sworn to by Detective John Marchioni of the City of Peekskill Police Department, the search warrant order signed by the Honorable Lissette G. Fernandez, Peekskill City Court Judge, the search and seizure receipt and inventory, and information presented orally to the Court by the prosecutor. The above documents were emailed to the Court on consent of defense counsel. After the appearance, the prosecutor emailed a copy of the youth part felony complaint.
The defense argued that the individual visible in the video surveillance was wearing common items and the fact that similar items were recovered from the defendant's residence is insufficient to show that the defendant is the same person shown in the video firing a gun at the apartment of P.B. He asserted that the People had not met its burden and respectfully requested that the matter be removed to family court. At the conclusion of oral arguments, this Court adjourned to consider the matter and to issue this written decision in accordance with Criminal Procedure Law § 722.23 (2) (d).
The defendant was born on [date and month redacted] 2002. On May 5, 2020, the date of the alleged incident, the defendant was seventeen years of age. The defendant was arrested on May 27, 2020. He has been charged with Penal Law § 265.03 (3) and Penal Law §§ 110.00, 120.10 (1). Both of these charges are identified as violent felonies in accordance with Penal Law § 70.02. The appearance held in accordance with Criminal Procedure Law § 722.23 (2) was heard on June 2, 2020, which was the sixth day after the defendant's arraignment. The People sought to retain the action in the Youth Part based upon the defendant's alleged display of a firearm. The defense seeks to have the action removed to Family Court.
This Court has considered the documents provided and the oral arguments by both counsel in making the instant determination. After such consideration, this Court finds that the People have satisfied their burden of proving by a preponderance of the evidence that the [*4]accusatory instrument sets forth that the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of an offense as set forth in Criminal Procedure Law § 722.23 (2) (c) (ii). For this reason, this Court finds that the matter is appropriately before the Youth Part of the Westchester County Court in and shall not be removed to Family Court consistent with Criminal Procedure Law § 722.23 (1). As such, the Youth Part will retain this matter for all future proceedings.
ACCORDINGLY, IT IS HEREBY
ADJUDGED that the prosecution has established, by a preponderance of the evidence, that the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense pursuant to Criminal Procedure Law § 722.23 (2) (c) (ii);
AND IT IS THEREFORE
ORDERED that this matter shall not proceed in accordance with the provisions of Criminal Procedure Law § 722.23 (1); and it is further
ORDERED that this matter shall remain in the Youth Part of the Westchester County Court; and it is further
ORDERED that all parties and counsel shall appear before the Honorable Helen Blackwood in the Westchester County Court Youth Part on June 18, 2020 at 2:00 pm for a virtual appearance.
THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.
Dated: June 5, 2020 Footnotes
Footnote 1:The individuals identified as JI, JU and M are minors and their names have been redacted. The individuals identified as PB and GB are adults but their names have been redacted for privacy and safety.
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