PEOPLE v. C.R., Adolescent Offender. (2020)

The defendant in this matter, C.R. (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 way of a Felony Complaint with one count of Attempted Murder in the Second Degree [Penal Law §§ 110/125.25(1) ]; and one count of Reckless Endangerment in the First Degree [Penal Law § 120.25]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) 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 September 16, 2020, at about 12:40 AM, at O. Avenue B.S. in E., Nassau County, New York. The AO was arrested on October 22, 2020 and arraigned on October 23, 2020, at which time the Court scheduled the statutory “sixth-day appearance” in this matter for October 29, 2020.

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 firearm or deadly weapon in furtherance of the crimes with which he has been charged. The People did not call any witnesses or offer any documents into evidence. Their presentation consisted of reading from the Felony Complaint and elaborating upon the allegations in the Felony Complaint 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 that addressed the allegations set forth in the Felony Complaint. Counsel also addressed the additional hearsay-based facts asserted by the People at the Sixth Day Appearance.

FACTUAL ALLEGATIONS

It is alleged in the Felony Complaint that on or about September 16, 2020 at about 12:40 AM, at an intersection in E., Nassau County, New York, the AO was the front passenger in a 2009 Toyota RAV4 [hereinafter, the “RAV4”] and engaged in conduct which created a grave risk of death to the victim by discharging a black .45 caliber Tanfoglio pistol in the direction of the victim in order to prevent the victim from following the RAV4. The black .45 caliber Tanfoglio pistol was allegedly recovered from the AO's person on the date of the alleged incident with the manufacturer's serial number destroyed.

The People asserted additional hearsay-based facts at the “sixth-day appearance”, including, inter alia, that the victim observed two individuals on his property; those individuals were allegedly the AO's friends/associates. The victim ran out of his property and pursued those individuals. The victim then allegedly saw one individual (not the AO) enter the RAV4 and then the victim himself allegedly entered a vehicle and followed the RAV4. He called 911 to report what he was observing, and he gave the Police the make and model information for the RAV4. He then allegedly observed that the RAV4 was occupied by numerous individuals: one male individual in the front passenger seat, and two additional male individuals in the back seat of the car.

The victim and the victim's friend, each driving separate cars, attempted to box in the RAV4 to prevent the RAV4 from getting away. The RAV4's driver (not the AO) then intentionally crashed his vehicle into the victim's vehicle. The victim allegedly observed that the RAV4's front passenger had on a black hoodie, with the hood up, and that there were yellow decals on the hoodie's hood. The victim described them as patches on the hood and described that the hoodie's hood was up.

After the RAV4 struck the victim's vehicle, the victim then heard and saw what he believed to be flashes come from the front seat. At that point, the victim then allegedly stopped pursuing the RAV4, due to damage to the victim's car, and his fear that the flashes were gunshots.

Through the victim's 911 call, the police allegedly learned that a gray RAV4 was involved in a shooting of some sort. The initial incident occurred in the vicinity of the victim's home; followed by the victim's pursuit of the RAV4 which ended in another area of E., approximately .2 miles away from the victim's home. The alleged shooting occurred at this second location in E.(hereinafter “shooting location”). A first police officer named Officer N. was canvassing the area due to the 911 call; he was allegedly enroute to the alleged “shooting location” when he heard the gunshots. While Officer N. was traveling to the alleged “shooting location”, and was about 460 feet from that location, he allegedly observed the RAV4 drive away from the location at a high rate of speed. The vehicle allegedly failed to comply with police commands to stop. Officer N. allegedly continued to follow the vehicle from the point of that initial contact, but he lost sight of the RAV4. Another police officer, named Officer M., then allegedly observed the RAV4 in a location that is less than one mile away from the prior location of the RAV4.

A third police officer, named Officer O., was also canvassing the area, and observed the AO walking in the direction of M. Avenue in E. The AO allegedly observed the officer and started to run, then tripped and fell. As the AO fell, a Tanfoglio pistol allegedly fell from his waistband and a live round was allegedly released from the firearm due to the impact from the fall.

The People further alleged at the “sixth-day appearance” that Officer N., the police officer who attempted to first stop the RAV4, subsequently came into contact with the AO later that same day, and the AO allegedly made a statement to the officer referencing that they had earlier come into contact with each other. The People further alleged that when the AO was arrested, he was wearing a black hooded sweatshirt that had yellow decals on it.

The People further alleged that the handgun found on the AO was a .45 handgun, which matches casings that were found at the scene of the shooting. They alleged that the location where the AO was arrested is approximately .5 to .6 miles from where the RAV4 was found. They further alleged that the arrest of the AO for possession of a weapon (which charges are pending against the AO in a separate accusatory instrument that was not the subject of this “sixth-day appearance”) occurred within a 10-minute timeframe from the time of the alleged shooting incident.

In response to defense counsel asking what the other individuals in the car were wearing, the People alleged that the victim observed an individual in the RAV4 wearing a red hooded sweatshirt, entering the back of the RAV4, and that the driver of the RAV4 was wearing a light colored camouflage sweatshirt. The front passenger, alleged to be the AO, was wearing a dark hooded sweatshirt with yellow patches or decals on it. The AO was allegedly arrested while wearing a black hoodie with yellow patches on it.

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, shotgun, rifle 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”. However, the Raise the Age [“RTA”] statute 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]). For instance, the Court notes that CPL § 722.23(b) contains no language requiring that the “sixth-day appearance” include any testimonial evidence or even, as required on a motion to prevent removal of the action “allegations of sworn fact based upon personal knowledge of the affiant”. (CPL § 722.23[1][b]).

The review conducted at the “sixth-day appearance” for the purposes of determining whether to remove a case has accurately been analogized to a Temporary Order of Protection hearing. (People v. B.H., 62 Misc 3d 735, 739-740 [Nassau County Ct 2018]). It has therefore been this Court's practice, and the apparent practice of other Youth Part courts, to consider the accusatory instruments, any supporting depositions, and to also consider hearsay evidence. (People v. B.H., 62 Misc 3d 735, 739-740 [Nassau County Ct 2018]; People v. Meggie, 184 Misc 2d 883, 886 [Nassau Dist Ct 2000]; People v. J.W., 63 Misc 3d 1210[A] [Sup Ct, Kings County 2019]; People v. Y.L., 64 Misc 3d 664 [Monroe County Ct 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 at the “sixth day appearance”, that the AO discharged a pistol in the direction of the victim and that the subject pistol was subsequently recovered from the AO's person. A “firearm” is defined under the Penal Law to include “any pistol or revolver”. (Penal Law § 265.00[3]). 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 ”. (Penal Law § 10.00[12]).

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][citing In re M.B., 6 NY3d 437, 447 [2006]). Giving effect to the “plain meaning”² of the term “display”, and having used the “dictionary definition” as a “guidepost” to determine the “ordinary” and “commonly understood meaning” of the word ³ , the Court finds that the term “display” means to “prominently exhibit something” where it can easily be seen and/or “to make evident”⁴ .

The Court has considered the language used in the Felony Complaint and the additional hearsay-based facts asserted by the People at the “sixth-day appearance” including, inter alia, that when the AO was arrested, he was wearing a black hoodie with yellow patches on it, and the victim observed the alleged shooter to be wearing a dark-colored hoodie with the hood up and with yellow patches on it. Additionally, the Court has considered those allegations from the Felony Complaint and the additional hearsay-based facts from the “Sixth-Day Appearance” which indicated that when the AO tripped and fell while running from law enforcement, a pistol fell from his waistband and a live round released therefrom, and this pistol was of the same caliber as the casings located at the scene of the alleged shooting. For the purpose of the “sixth-day appearance” inquiry, the Court is proceeding on the assumption of the veracity and accuracy of the factual allegations contained in the Felony Complaint and those additional hearsay-based facts as offered by the People at the “sixth-day appearance”. (See, e.g., People v. Meggie, 184 Misc 2d 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 addressing a possible “justification” defense if it is proven that the AO was the shooter, or whether the purported shooter's intention was to murder or something else. 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 are instead most likely issues to be considered by the factfinder.

For the foregoing reasons, the People's application to disqualify the AO's case from removal to the Family Court is granted, and this case, as well as the AO's case under docket No. FYC-00000-00, will remain in the Youth Part for all future proceedings.

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

FOOTNOTES

1.   The AO is also charged, by way of a separate Felony Complaint under Docket No. FYC-00000-00/000, with the crimes of Criminal Possession of a Weapon in the Second Degree [Penal Law § 265.03(3)]; Criminal Possession of a Weapon in the Third Degree [Penal Law § 265.02(3)]; and Criminal Possession of a Firearm [Penal Law § 265.01-b(1)]. The AO was arraigned on this other accusatory instrument on September 16, 2020. As it pertains to the removal or retention of the AO's case under Docket No. FYC-00000-00/000, the parties have consented to the Court treating the charges under Docket No. FYC-00000-00 identically to the charges under this Docket No., FYC-00000-00/000.

2.   See People v. Roberts, 31 NY3d at 418 (“As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof”).

3.   People v. Aleynikov, 31 NY3d 383, 397 [2018]

4.   See, Merriam-Webster Online Dictionary, “display”, available at [https://www.merriam-webster.com/dictionary/display]; see also, Oxford English Dictionary, “display”, available at [https://www.lexico.com/en/definition/display]; see also, People v. Smith, 29 NY3d 91, 103 [2017][Dissent] ).

Conrad D. Singer, J.