The People of the State of New York, v. M.S., Defendant. (2026)

Defendant M.S. is charged as an adolescent offender (AO) with numerous offenses including Murder in the Second Degree, as defined by Penal Law § 125.25(1), Manslaughter in the First Degree under Penal Law § 120.10(1), Attempted Murder in the Second Degree, Penal Law §§ 110.00, 125.25(1), and multiple counts of Criminal Possession of a Weapon in the Second Degree pursuant to Penal Law § 265.03(3), and related charges. These charges arise from an alleged conspiracy that operated in Bronx County between June 25, 2021, and November 17, 2021. Seventeen at the time of the alleged crimes, the defendant, indicted before his arrest, is alleged to have acted in concert with others to commit acts of violence on behalf of the group to procure points to move up within the ranks, said activities leading to physical injury to numerous individuals, culminating in the death of Aneki Chung on November 17, 2021.

On May 17, 2026, the court arraigned defendant in Part SCA on this indictment and a second indictment, number 71237-26. The matters were adjourned to May 27, 2026, in Part 21, for defendant to join his co-defendants on indictment 71250-26, and for a six-day retention hearing under CPL § 722.23 [2] [a] to determine whether the case should remain in Supreme Court or be transferred to Family Court. The District Attorney, Bronx County, opposes removal and instead moves to retain jurisdiction pursuant to CPL § 722.23 (1) et seq.

On May 27, 2026, this court held the requisite six-day review, i.e., a retention hearing. Based on the evidence presented, the applicable law, and oral arguments, the court makes the following findings of fact and conclusions of law.

Findings of Fact

At the hearing, the People introduced multiple forms of documentary and physical evidence for the court's consideration, including the minutes of the grand jury presentation, surveillance video recordings depicting the alleged incidents, a still image of the vehicle allegedly involved in the November 2021 homicide, photographs documenting the decedent's injuries, the decedent's official death certificate, and a ballistics report pertaining to the shell casings recovered at the homicide scene.¹

July 13, 2021 — Attempted Murder

The People allege that on July 13, 2021, defendant was the front seat passenger of a BMW sedan traveling on Gunther Avenue, Bronx County, in opposition gang territory. The prosecution displayed video surveillance from 3185 Gunther Avenue that captured the vehicle traveling northbound. As the car approached 3230 Gunther Avenue, defendant, in the front passenger seat, and another individual seated behind him in the right rear passenger seat opened fire at the opposing gang member. A vehicle parked near 3230 Gunther Avenue sustained ballistics damage. A New York City Police Department Evidence Collection Team [ECT] responded to the location and recovered four .40 caliber Smith & Wesson shell casings. No injuries were reported.

October 30, 2021 — Attempted Murder

On October 30, 2021, the People contend that defendant was again a passenger in a vehicle traveling in rival gang territory. A New York City Department of Transportation (DOT) speed camera captured two cars turning onto Randall Avenue from Balcom Avenue in Bronx County. Video footage from that DOT camera, surveillance video from 2745 Schley Avenue, and civilian cellular telephone camera footage record the incident. Two vehicles, one, a white BMW sedan with its hazard lights flashing, trails a gray or silver sedan past 2745 Schley Avenue, where a large group of individuals is gathered for a candlelight memorial. As the cars pass the gathering, multiple people in the vehicles, including defendant, fire weapons in the direction of the crowd. One camera recorded people running away from the memorial, while a second and a third camera captured those individuals entering nearby buildings. A cell phone camera recorded the vehicles driving past the memorial along with the sound of gunfire reverberating.

One camera also documented several memorial service attendees returning gunfire in the direction of the two cars. ECT recovered more than twenty shell casings from the scene. Microscopic comparisons of the recovered shells determined that eight firearms were discharged in the exchange, including a 9-millimeter, a .380 caliber weapon, a .40-caliber gun, and a .45 caliber firearm.

Cameras on the building of 2745 Schley Avenue recorded a group of people ducking and flinching as if trying to avoid unseen objects. A male in the group, dressed in a white sweatsuit, appears to stumble and fall to the ground. When he gets back on his feet, a red stain appears on his pant leg. It is later determined that the man received a non-fatal gunshot wound to his left leg. Ironically, this man was the father of the person being eulogized that evening.

November 17, 2021 - Homicide

The prosecution presented video footage recovered from multiple locations in the 800 block of Burke Avenue, Bronx, New York, all recorded around 5:00 p.m., with date stamps of November 17, 2021, and time stamps of approximately 5:00 p.m., capturing the relevant events. The footage depicts Chung crossing Burke Avenue, accompanied by several individuals. Aneki Chung is wearing a red outfit consisting of a sweatshirt and sweatpants, with a black vest over them. As the three reach the opposite sidewalk, a dark-colored vehicle drives past the group. As the vehicle passes, several occupants open fire on Chung and his associates. The videos from 815 Burke Avenue show Chung and his associates attempting to run from the area. Chung is observed falling to the sidewalk. An individual unrelated to the group is observed falling to the sidewalk next to Chung. In addition, a second, unrelated individual is seen reacting to the commotion and hurriedly entering 815 Burke Avenue. A third individual, who was with Chung, also appears to have been injured.

The dark-colored vehicle makes a U-turn on Burke Avenue, heading away from Chung and the others. As the car goes through an intersection, a New York City Department of Transportation red light camera captures an image of the vehicle, a Honda Pilot, and its operator.After a minute or so, the person who fell near Chung stirs and appears to use a cellular phone, presumably to call for assistance. Chung is still face down on the sidewalk, not moving. About a minute and a half later, the video captures Chung moving his legs. Approximately two minutes later, Chung attempts to push himself up from the sidewalk. Police officers arrive about thirty seconds later. Both the police and the emergency medical workers rendered aid to Chung and the civilian near him. Chung was transported to Jacobi Hospital, where he died on November 22, 2021. The New York City Police Department recovered eight shell casings of different calibers from the sidewalk where Chung and the others were injured. The prosecution provided the laboratory report to the court.

Before the grand jury, two of the three individuals who sustained injuries testified as to how and when they received the injuries, the location of their physical injuries, and the residual effects of being shot. The person who fell onto the sidewalk near Chung sustained a through-and-through gunshot wound to the left leg above the knee. The wound did not require stitches, but the complainant needed pain medication and temporarily used crutches and later a cane. The second person, who entered 815 Burke Avenue, was struck in the right leg and thigh and the right side of their abdomen, requiring medical attention and physical therapy.

Aneki Cheng sustained at least one gunshot wound to the head. He received treatment at Jacobi Hospital until his death on November 22, 2021. The death certificate of Aneki Chung was submitted to the grand jury documenting his demise and noting the cause of death, specifically, a gunshot wound to the head with injury to the brain. There was also testimony before the grand jury panel that specifically identified M.S. as one of the two individuals who discharged firearms on the scene on November 17, 2021.

The grand jury returned an indictment charging M.S. with attempted murder in the second degree and related charges for the July 13, 2021 shooting, a second count of attempted second-degree murder and related charges for the shooting of October 30, 2021, and murder in the second degree for the death of Aneki Chung on November 17, 2021.

The People submitted the previously mentioned exhibits at the hearing. Defense did not submit any documents for the court's consideration.

Conclusions of Law

In 2018, the New York legislature passed "Raise the Age" legislation (RTA), which gradually increased the age of criminal responsibility within the state by creating a new class of offender, the adolescent offender (AO) (People v B. H., 63 Misc 3d 244, 245 [Sup Ct Nassau County 2019]). This reform was enacted in response to growing recognition, both nationally and within New York State, that prosecuting sixteen and seventeen-year-olds as adults contributed to adverse social outcomes, including higher rates of recidivism and barriers to successful reintegration, Research and advocacy highlighting developmental science and juvenile justice reform indicated that young people are particularly amenable to rehabilitation and that adult criminal sanctions often undermine this potential. Accordingly, the legislative purpose underlying RTA was to address concerns that sixteen and seventeen-year-olds prosecuted as adults faced disproportionately harsh consequences, often resulting in negative impacts on rehabilitation and recidivism. The law was thus enacted to "raise the age of adult criminal responsibility from sixteen to eighteen so that youth who are charged with a crime may be treated in a more age-appropriate manner" (People v G. C., 63 Misc 3d 518, 519 [County Court, Westchester County 2019] quoting Assembly Mem in Support of Legislation, 2014 NY Assembly Bill A3668). By requiring such cases to be heard in the Youth Part of a local superior court (CPL 722.10), the legislature intended to create a procedural mechanism that ensures individualized consideration consistent with the rehabilitation aims of juvenile justice. The Youth Part is required, within six days of the arraignment of an AO charged with a violent felony as defined in Penal Law § 70.02, to review the accusatory instrument and any relevant facts in order to determine, in light of the statutory and legislative objectives, whether the case should be retained in the Youth Part or removed to Family Court (CPL 722.23 [2] [a], [b], [c]) (People v Y. L., 64 Misc 3d 664, 665 [County Court, Monroe County 2019]).

Under CPL 722.23, removal to Family Court is automatic for all eligible matters after arraignment, unless: (1) the District Attorney brings a motion to prevent transfer and the court finds the offense should not be removed because of extraordinary circumstances, or (2) the youth is charged with a violent felony offense and the People establish, by a preponderance of the evidence, one or more of the following 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 contact as defined in section 130.00 of the penal law.²

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]; People v Giuca, 33 NY3d 462, 486 [2019] [in dissent]. More succinctly, it is evidence that must be of such weight so as "to produce a reasonable belief in the truth of the facts asserted" (People v B.H. at 740).

As noted above, in addition to Chung, four individuals sustained physical injuries attributable to the actions of defendant M.S. In this analysis, the central issue is whether these injuries qualify as significant within the statutory framework. Under Penal Law § 10.10 (9), "physical injury" is defined as impairment of physical condition or substantial pain. By contrast, "serious physical injury," as defined by Penal Law § 10.10 (10), is an injury that creates a substantial risk of death, causes death, results in serious and protracted disfigurement, protracted impairment of health, or the loss or the prolonged impairment of the function of any bodily organ. The term "significant physical injury" is not expressly defined within the statute, but its placement indicates an intent to recognize injuries that are more serious than a mere physical injury but less severe than the threshold of serious physical injury. Legislative history (Assembly, Record of Proceedings, April 8, 2017, p. 48) clarifies that this intermediate category was created to encompass harm that is of a greater degree than "physical injury," yet does not rise to "serious physical injury." Accordingly, the proper legal analysis requires a careful assessment of whether the injuries in question occupy this intermediate space, as only those injuries that meet this threshold may justify retaining the case in the Youth Part rather than transferring it to Family Court.

A review of relevant case law reveals that New York courts have recognized the following injuries as qualifying as significant physical injuries, with precedent establishing that both penetrating trauma (such as gunshot wounds and stab wounds), blunt force injuries resulting in fractures or concussions, and extensive lacerations requiring medical intervention can satisfy the statutory threshold. Illustrative examples include gunshot wounds (People v McLean, 128 AD3d 1094, 1095 [2d Dept 2015]); severe lacerations inflicted by weapons (In re Angelica A., 56 Misc 3d 1220 [A], *4, *8 [Family Court, Bronx County 2017]), (People v A.S., 62 Misc 3d 1220 [A], *2 [Family Court, Erie County 2019]); bone fractures and concussions from physical assault (People v E.B.M., 63 Misc 3d 576, 583 [County Court, Nassau County 2019]; and complex injuries stemming from vehicular collisions (People v Colon, 72 Misc 3d 785, 789 [County Court, Orange County 2021]. The courts have also found that internal organ damage (People v D.R., 66 Misc 3d 1213 [A], *2 [County Court, Nassau County 2020]); injuries resulting in ongoing medical treatment or permanent impairment (People v J.A., 66 Misc 3d 1226 [A], *2 [County Court, Nassau County 2020]); as well as death itself (People v E.H., 71 Misc 3d 1222 [A], *3 [County Court, Nassau County 2021]) to fall within the category of significant physical injury.

Two of the three people who sustained non-fatal injuries in November 2021 testified before the Grand Jury. Their testimony described gunshot wounds to the leg, thigh, and abdomen, which resulted in both immediate and ongoing effects. The consequences encompassed visible scarring, persistent pain and discomfort, impaired mobility, and psychological repercussions. These facts directly related to the statutory threshold for "significant physical injury," as the injuries involved impairment of physical condition and substantial pain exceeding the minimal criteria of mere "physical injury," but not rising to the level of "serious physical injury" as defined in Penal Law § 10.10 (10). The evidence thereby demonstrates both acute physical harm and broader, long-term effects that satisfy and exemplify the intermediate degree of harm contemplated by the statute. In the case of Aneki Chung, the injuries not only meet but exceed the threshold for "significant physical injury" and fulfill the legal standard for "serious physical injury" as defined under Penal Law 10.10 (10), since Chung sustained a gunshot wound to the head resulting in brain damage and death five days later, on November 22, 2021.

The injury of death is certainly a significant physical injury as required under CPL Section 722.23 (2) (c) (i) and (2) (c) (ii). Truly, "it would defy logic to argue that causing the death of a person was not the serious criminal conduct contemplated by the legislature to warrant retention of a criminal case by the Youth Part" (People v G.C., 63 Misc 3d 518, 522 [County Court, Westchester County 2019]).

The grand jury panel received testimony specifically identifying M.S. as one of the two shooters involved in the incident on July 13, 2021. He was identified as one of several individuals who discharged firearms on October 30, 2021, and one of two individuals who fired weapons in the direction of Chung and others on November 17, 2021. This record provides sufficient evidentiary support for the application of CPL § 722.23 [2] [c] [i] and [ii]. Pursuant to CPL § 722.23 [2] [c], removal is precluded where the People establish by a preponderance of the evidence that: (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." The People's submissions, including direct testimony and physical evidence, satisfy this standard by demonstrating that M.S. acted in concert with others to both cause significant physical injury to multiple non-participant individuals and to display firearms during the commission of the offenses. These evidentiary findings directly correspond to the statutory language of CPL 722.23 [2] [c] [i] and [ii], thereby meeting the requirements for retaining the case in the Youth Part and precluding its removal to Family Court.

Defense counsel, in support of a transfer to Family Court, requests the release of the complete grand jury transcript, asserting that access to the full transcript presentation is necessary to effectively scrutinize the identification of defendant as a participant in the alleged offenses. Without such disclosure, the defense contends they are placed at a disadvantage and cannot fairly contest the prosecutor's assertions, as key details regarding the context and circumstances of identification remain inaccessible. Additionally, defense counsel maintains that removal to Family Court is warranted because the prosecution has not established which specific individuals caused the injuries at issue, emphasizing the importance of individualized assessment of culpability when multiple defendants are implicated. According to the defense, the inability to attribute particular injuries to individual defendants impairs the sufficiency and specificity of the People's case and may undermine core principles of due process. This, defense argues, calls into question the fairness and appropriateness of retaining the matter in the Youth Part, given the heightened focus on individualized justice within the statutory framework.

The court respectfully disagrees. Under the statutory framework, when an adolescent offender is charged with a violent felony offense, the court's role is to review the accusatory instrument and any relevant facts to determine whether retention in the Youth Part is warranted or whether removal to Family Court is appropriate (CPL 722.23 [2] [a] - [c]). Specifically, the statute directs the court to consider whether the accusatory instrument alleges, and the evidence supports, the presence of at least one of three qualifying factors: (i) that the defendant caused significant physical injury to a non-participant, (ii) that the defendant displayed a firearm, shotgun, rifle, or other deadly weapon, or (iii) that the defendant engaged in specified sexual conduct. Here, the accusatory instrument established two of these statutory factors by alleging that the defendant both caused significant physical injury to a person other than a participant in the offense and displayed either a firearm or another deadly weapon. Accordingly, the statutory retention requirements have been satisfied.

In addition to submitting the indictment, the People supplemented their submission to the court with the grand jury testimony of multiple witnesses, laboratory ballistics reports, videos of the October 30, 2021 shooting, the death certificate of Aneki Chung, and videos of the homicide. This evidence, which was also presented to the grand jury, established reasonable cause to believe that defendant committed the charged offenses (CPL 190.65 [1]; see People v Jensen, 86 NY2d 248, 251-252 [1995]). Importantly, the evidence collectively demonstrates not only the occurrence of each crime but also the manner in which the defendant allegedly acted in concert with others. The principle of concert liability imposes joint responsibility on all participants for the acts committed by any member of the group in furtherance of the criminal conduct. Here, the use of multiple weapons and the coordinated actions documented in the evidence support the inference that defendant jointly participated in the commission of the homicide and assaults, resulting in significant physical injuries. Therefore, for the purposes of the retention hearing, identification of the particular individual who caused each injury is unnecessary where evidence substantiates shared culpability under concert liability. Defense counsel's arguments regarding the sufficiency and specificity of this identification are more appropriately addressed through an omnibus motion.

Conclusion

The District Attorney has satisfied its burden pursuant to CPL § 722.23 [2] [c] [i] and [ii] and proven by a preponderance of the evidence that this matter should not proceed in accordance with the provisions of CPL § 722.23 [1].

Dated: June 3, 2026

Bronx, New York

HON. VERENA C. POWELL, A.J.S.C.

FOOTNOTES

1.   The People presented the court with a flash drive storage device marked People's Exhibit 1. Contained therein were the following items:People's 1-A, grand jury presentation for three incidents:July 13, 2021Sub-Exhibit B (1-B), video surveillance from 3185 Gunther Avenue form July 13, 2021;Sub-Exhibit C, photograph of ballistic damage to a car;October 30, 2021Sub-Exhibit D, a laboratory report from the New York City Police Department Police Laboratory Firearms Analysis related to the October 30, 2021 shooting;Sub-Exhibit E, NYC DOT speed camera image in area of Balcom Avenue and Randall Avenue;Sub-Exhibit F, cellular phone video from near 680 Balcom Avenue;Sub-Exhibit G, video surveillance from 2745 Schley Avenue;Sub-Exhibit H, photograph from candlelight memorial;Sub-Exhibit I, photograph of complainant injurySub-Exhibit J, photograph(s) taken by NYPD Evidence Collection Team (ECT);November 17, 2021Sub-Exhibit K, a laboratory report from the New York City Police Department Police Laboratory Firearms Analysis related to the November 17, 2021 homicide;Sub-Exhibit L, video surveillance from 810 Burke Avenue;Sub-Exhibit M, video surveillance from 815 Burke Avenue;Sub-Exhibit N, additional video surveillance from 815 Burke Avenue;Sub-Exhibit O, video surveillance from 800 Burke Avenue;Sub-Exhibit P, 8 1/212 by 11 inch still image of a dark colored vehicle;Sub-Exhibit Q & R, photographs of the complainant/decedent in Jacobi Hospital, one of his head and upper body, the second full body in hospital bed;Sub-Exhibit S, a laboratory report from the New York City Police Department Police Laboratory Firearms Analysis Section;Sub-Exhibit T, death certificate issued by the New York City Office of the Chief Medical Examiner (OCME) for Aneki Mervin Chung.

2.   CPL § 722.23 [2] states in pertinent part:(a) Upon the arraignment of a defendant charged with a crime committed when he or she was sixteen or, commencing October first, two thousand nineteen, seventeen years of age on a class A felony, other than those defined in article 220 of the penal law, or 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 pursuant to this subdivision. The court shall notify the district attorney and defendant regarding the purpose of such appearance.(b) Upon such appearance, the court shall review the accusatory instrument and any other relevant facts for the purpose of making a determination pursuant to paragraph (c) of this subdivision. Both parties may be heard and submit information relevant to the determination.(c) The court shall order the action to proceed in accordance with subdivision one of this section unless, after reviewing the papers and hearing from the parties, the court determines in writing that the district attorney proved by a preponderance of the evidence one or more of the following 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; oriii) 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.(d) Where the court makes a determination that the action shall not proceed in accordance with subdivision one of this section, such determination shall be made in writing or on the record and shall include findings of fact and to the extent practicable conclusions of law.(e) Nothing in this subdivision shall preclude, and the court may order, the removal of an action to family court where all parties agree or pursuant to this chapter.

Verena C. Powell, J.