PEOPLE v. M.K. (An Adolescent Offender), Adolescent Offender. (2025)

The Adolescent Offender (AO), born on XX/XX/2008, was sixteen (16) years of age at the time of his arrest. AO was charged with Attempted Murder in the Second Degree, in violation of Penal Law § 125.25 (1); Attempted Assault in the First Degree, in violation of Penal Law § 120.10 (1); Attempted Assault in the Second Degree, in violation of Penal Law § 120.05-2; Arson in the Second Degree, in violation of Penal Law § 150.15; and Criminal Possession of a Weapon in the Fourth Degree, in violation of Penal Law § 265.01-2. The AO was arraigned before the Hon. Micheal C. Howard on July 9, 2025. AO was subsequently accused by Indictment of Attempted Murder in the Second Degree, in violation of Penal Law § 125.25 (1); Attempted Assault in the First Degree, in violation of Penal Law § 120.10 (1); and Arson in the Fourth Degree, in violation of Penal Law § 150.05. The People requested a six-day review pursuant to CPL § 722.23 (2) (a) and the six-day review commenced before the Hon. Ricja Rice on July 15, 2025.

CPL § 722.23 (2) (c) requires that the Court transfer an Adolescent Offender's case from Youth Part to Family Court unless the Court finds that the People prove, by a preponderance of the evidence, the existence of one or more factors as outlined in CPL § 722.23 (2) (c) (i), (ii), or (iii). As relevant here, the People argue that the factors outlined in CPL § 722.23 (2) (c) (ii) exist because AO allegedly displayed a deadly weapon as defined in the penal law in furtherance an offense.

“To establish a fact by a preponderance of the evidence means to prove the fact is more likely than not to have occurred” (People v. V.A.M., 73 Misc.3d 293, 297-298, 154 N.Y.S.3d 375 [Nassau County Ct. 2021]). “In determining whether the People have satisfied their burden under CPL § 722.23 (2) (c), the Court may consider the accusatory instrument, any supporting depositions, as well as hearsay evidence (Id. citing People v. B.H., 62 Misc.3d 735, 89 N.Y.S.3d 855 [Nassau County Ct. 2018]; see People v. J.W., 63 Misc.3d 1210(A), 2019 WL 1475024 [Sup. Ct. Kings County 2019]).

At the six-day review, the People presented the following:

Exhibit 1: CD — Interview of AO

Exhibit 2: CD — Surveillance Footage

Exhibit 3: Indictment

Exhibit 4: Photo — Building Wall

Exhibit 5: Photo — Alley

Exhibit 6: Photo — Crime Scene Photo

Exhibit 7: Photo — Crime Scene Photo Close Up

Exhibit 8: Photo — Flare Gun with Cartridge

Exhibit 9: Photo — APD CIU Posting

Exhibit 10: Photo — Street Photograph

Exhibit 11: Photo — Suspect Photograph

No testimony was taken, and the parties agreed to rely upon oral argument and submissions of relevant case-law. The Court has reviewed the accusatory, exhibits, and written submissions.

FACTUAL ALLEGATIONS

It is alleged that on July 4, 2025, the AO fired a flare gun at another individual, and that the flare instead struck a residential building, causing it, and an adjacent business to catch fire. After the AO fired the flare gun, the flare went through a window into a residential building (see Exhibit 2). The building and the adjacent business both caught fire. Both the residential building and the adjacent business were unoccupied at the time of the fire.

The AO was interviewed by police investigators with his aunt present. During his police interview, the AO mentioned that there was a kid at the scene who he did not like that night; the AO originally claimed that he and this individual had smoothed things over; however, the AO later admitted in his interview that there was a confrontation with some kids who were “talking shit” (see Exhibit 1, 01:27:40, 01:36:30). The AO ultimately admitted that he was the one who had the flare gun and stated that he did not mean to shoot the flare into the house (see Exhibit 1, 01:38:10). The AO stated that he was just trying to scare the other kids off, because he saw one of the other kids reach for something in his pants, and he “didn't want to die” (see Exhibit 1, 01:38:40, 01:43:08). The AO stated that he threw the flare gun and ran. The AO reported hearing gun shots as he ran, and stated that, at the time, he thought the gun shots were being fired at him (see Exhibit 1, 01:43:425).

The People further submitted video footage showing the flare gun being fired, and shortly afterwards, multiple gunshots were heard (see Exhibit 2, 00:50). It is not alleged that the AO fired any of these gunshots. Rather, another adolescent offender is accused of firing the gunshots. Counsel for the AO argues that there is no connection between the AO and the shooter.

Defense Counsel alleged that the AO fired the flare as a warning shot. The People alleged that the AO fired the flare at an individual, but missed, instead hitting a building. Defense also argued that the AO expressed significant remorse in the interview (see Exhibit 1, 01:38:45).

CONCLUSIONS OF LAW

The Court finds the People have established by a preponderance of the evidence that the AO “displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense” (see CPL § 722.23 [2] [c] [ii]). In making this determination, this Court recognizes that the legislature intended for only the most serious offenses to be prosecuted in the Youth Part and that any less serious offense should be presumed to be handled in Family Court. In order for an AO's case to be disqualified from removal to the Family Court, CPL § 722.23 (2) (c) (ii) requires that the People must prove, by a preponderance of the evidence, that the AO showed or ‘exhibited ostentatiously’ an actual firearm or ‘deadly weapon as defined in the penal law’ ” (People v. M.M., 63 Misc.3d 772, 97 N.Y.S.3d 426 [Nassau County Ct. 2019] citing CPL § 722.23[2][c][ii]). As germane here, the statutory definition of firearm includes “any pistol or revolver” (Penal Law § 265.00), and a deadly weapon is defined as “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged” (Penal Law § 10.00 [12]).

Whether a flare gun constitutes a deadly weapon for the purposes of CPL § 722.23 (2) (c) (ii) appears to be a question of first impression in the State of New York. There is a dearth of case-law addressing whether a flare gun constitutes a deadly weapon under the Penal Law. One of the few cases addressing the classification of a flare gun under New York law is People ex rel. Altomari v. Evergood, 74 N.Y.S.2d 12, 15 [N.Y. City Ct., 1947]). The People encourage this Court to extend the holding of that case to the present case.

In People ex rel. Altomari v. Evergood, a type of flare signaling pistol known as a Very pistol, was used by a robber to fire shotgun shells, killing a police officer. The owner of the Very pistol was thereafter charged with unlawful possession of a weapon without a license in violation of the Penal Law. In Altomari, the defendant moved to dismiss the case; however, the Court found that there was prima facie evidence that the Penal Law had been violated by the defendant. The Court determined that although the Very pistol was not originally designed to be a weapon, it was adapted by the burglar to fire bullets, and used to kill a police officer. Id. Based on these facts, the Court found that the People established a prima facie case to show a Very pistol required a permit within the definition of Penal law. Id.

The People further attempt to analogize a flare gun to a BB gun, which has been found to be a deadly weapon within the meaning of the Penal Law (see People v. AT, 63 Misc.3d 336, 338, 94 N.Y.S.3d 431 [Fam. Ct., Erie County 2019]; cf. People v. Akinlawon, 158 A.D.3d 1245, 71 N.Y.S.3d 300 [4th Dept. 2018]; People v. Perez, 93 A.D.3d 1032, 1035, 942 N.Y.S.2d 227 [3d Dept. 2012] (noting that “[a] police investigator testified that the BB gun was capable of causing serious physical injury or death if shot at close range at a person's eye or temple”)). The People appear to suggest that, like a BB gun, a flare gun is not typically likely to cause death or serious physical injury; however, under certain circumstances, it is readily capable of causing such harm.

Counsel for the AO urges the Court to disregard the decision in People ex rel. Altomari v. Evergood, decided nearly eighty (80) years ago, under a vastly different iteration of the Penal Law. Counsel for the AO further argues that this Court should consider, as persuasive authority, case-law from Hawaii, finding that a flare gun is not a firearm or dangerous weapon. The Supreme Court of Hawaii, in State v. Rackle, found that a flare gun is not a weapon under Hawaii statute, noting that “[a]n ordinary flare gun is not designed or intended to be used as a weapon”, rather it is “an emergency signaling device employed predominantly aboard boats to expedite rescue efforts” and recommended to be carried upon ships by the United States Coast Guard (State v. Rackle, 55 Haw. 531, 537, 523 P.2d 299 [Hawaii Sup. Ct. 1974]).

In reviewing the case-law provided, this Court first notes that the decision in People ex rel. Altomari v. Evergood, involves a very different set of facts, as the flare gun was used to fire shotgun shells. Here, there is no evidence that the flare gun at issue was capable of firing any other type of projectile or live ammunition. Rather, the flare gun at issue here was loaded with a signal flare, the intended projectile, and fired as designed. Further, a review of out-of-state authority more broadly reveals disagreement regarding the treatment of flare guns under the respective statutory schemes of different states (see State v. Rackle, 55 Haw. at 537, 523 P.2d 299 [Hawaii Sup. Ct. 1974]; but see Emmons v. State, 546 So. 2d 69, 71 [Florida Ct. of App., 2d Dist. 1989]. (finding that a flare gun was a firearm “because it is designed to and was actually capable of expelling a projectile by means of an explosive device”); United States v. Coston, 469 F.2d 1153, 1153 [4th Cir. 1972]; compare Commonwealth v. Sampson, 383 Mass. 750, 756-758, 422 N.E.2d 450 [Massachussetts Sup. Ct. 1981] (finding that a flare gun was not a firearm nor a weapon by design, but noting that “objects that are not weapons by design could be characterized as a weapon if it were so used”)).

In the absence of any clear guidance or binding authority, this Court must rely upon the plain language of the Penal Law. When interpreting a statute, the primary goal is to give effect to the intention of the legislature, and where the statute's language is clear and unambiguous, this court “must give effect to its plain meaning” (Matter of Alvarez v. Annucci, 38 N.Y.3d 974, 983, 167 N.Y.S.3d 421, 187 N.E.3d 1032 [2022]).

A deadly weapon is defined in Penal Law § 10.00 (12) as “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles”.Furthermore, the evidence presented by the People establishes that the device was loaded with and did in fact fire a flare. Therefore, a flare gun constitutes a weapon (see People v. Rodriguez, 32 A.D.3d 1203, 1205, 821 N.Y.S.2d 331 [4th Dept. 2006]).

The only remaining question is whether the projectile it was loaded with constituted “a shot, readily capable of producing death or other serious physical injury” (in Penal Law § 10.00 [12]).

On the 4th of July the AO fired a flare gun in the streets of Albany, New York, causing a residential building and an adjacent business to go up in flames. There is dispute as to whether the AO was attempting to hit someone with the flare or whether he was firing a warning shot over their heads. Regardless of which account is true, at best, the AO recklessly fired a flare in a densely populated residential urban area. It was sheer luck that both buildings were unoccupied at the time of the fire. Had either building been occupied, the results could easily have been serious injury or death. Therefore, there seems little question that an incendiary projectile, fired in that environment, constituted “a shot, readily capable of producing death or other serious physical injury” (Penal Law § 10.00 [12]).

It is true that the ordinary and intended purpose of a flare gun is to function as a signaling device, not a weapon. However, while the Court appreciates the argument made by the Supreme Court of Hawaii, and the Supreme Judicial Court of Massachusetts, essentially, that a weapon should, or should not be, classified as a weapon based solely upon its design and common use, this Court cannot ignore the fact that this flare gun served no legitimate purpose in the streets of Albany, New York on July 4, 2025. Therefore, for the purposes of CPL § 722.23, this Court finds that the flare gun, in the manner and environment used, falls squarely within the statutory definition of a deadly weapon.

The People have pled sufficient relevant facts, and provided sufficient evidence, to demonstrate that it was more likely than not that the AO unlawfully displayed a deadly weapon in furtherance of a criminal offense (see CPL § 722.23 [2] [c] [ii]).

Therefore, it is hereby:

ORDERED, that this matter shall remain in Youth Part and shall not be transferred to Family Court; and it is further,

This constitutes the decision and order of the Court.

Ricja Rice, J.