The People of the State of New York, v. N.B., Defendant. (2026)

Defendant NB is charged as an adolescent offender (AO) with one count of Murder in the Second Degree, as defined by Penal Law § 125.25(1), one count of Manslaughter in the First Degree under Penal Law § 120.10(1), and two counts of Criminal Possession of a Weapon in the Second Degree pursuant to Penal Law § 265.03(3), as well as related charges. These charges arise from an alleged conspiracy that operated in Bronx County between June 25, 2021, and November 17, 2021. The defendant, indicted before his arrest, is alleged in the indictment to have acted in concert with others to cause the death of Aneki Chung on November 17, 2021, at the age of sixteen.

At the April 9, 2026 arraignment, defendant's attorney requested a six-day 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, opposed removal and instead moved to retain the case pursuant to CPL § 722.23 (1) et seq.

On April 15, 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 incident, a still image of the vehicle allegedly involved, photographs documenting the decedent's injuries, the decedent's official death certificate, and a ballistics report pertaining to the shell casings recovered at the scene.¹

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 under a black vest. 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 to react to the commotion, 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 NB as one of the two individuals who discharged firearms at the scene on November 17, 2021.

The grand jury returned an indictment charging NB with second-degree murder and related charges in the death of Aneki Chung.

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]). The legislative purpose underlying this reform 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. Accordingly, the law was 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, three individuals sustained physical injuries. In this analysis, the central issue is whether these injuries qualify as significant within the statutory framework. "Physical injury" is statutorily defined in Penal Law § 10.10 (9) as an impairment of physical condition or substantial pain. "Serious physical injury," as defined by Penal Law 10.10 (10), refers to a physical injury that creates a substantial risk of death, causes death, serious and protracted disfigurement, protracted impairment of health, or prolonged loss or impairment of the function of any bodily organ. Although the RTA does not expressly define "significant physical injury," legislative history indicates that this term was intended to represent a degree of harm greater than physical injury but less than serious physical injury (Assembly, Record of Proceedings, April 8, 2017, p. 48).

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]); 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]) each fall within the category of significant physical injury.

Two of the three people who sustained non-fatal injuries testified before the Grand Jury. Their testimony detailed sustaining gunshot wounds to the leg, thigh, and abdomen, with immediate and ongoing effects. The consequences encompassed visible scarring, persistent pain and discomfort, impaired mobility, and psychological repercussions. This evidence demonstrates not only the acute physical harm but also the broader, long-term effects experienced by the complainants. 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 in 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]).

Because the grand jury panel received testimony specifically identifying NB as one of the two shooters involved in the incident on November 17, 2021, there is evidentiary support for the application of CPL § 722.23 [2] [c] [i] and [ii]). The People's submissions, including direct testimony and physical evidence, satisfy the preponderance of the evidence standard by demonstrating that NB acted in concert with others to both cause significant physical injury to multiple non-participant individuals and to display a firearm during the commission of the offense. These evidentiary findings directly correspond to the legal criteria set forth in CPL 722.23 [2] [c] [i] and [ii]), thereby meeting the statutory requirements for retaining the case in the Youth Part and precluding its removal to Family Court).

Defense counsel, advocating for removal of this case to Family Court, further requests the release of the complete grand jury presentation, arguing that without the full transcript, they are otherwise ill-prepared to challenge the validity of defendant's identification as one of the two shooters. Additionally, the defense asserts that the action should be transferred to Family Court, arguing that the prosecution cannot clearly establish which of the two alleged perpetrators caused each injury sustained by the individuals present on the street. This, according to the defense, undermines the sufficiency and specificity needed to proceed in the Youth Part.

The court respectfully disagrees. Under the statutory framework, when an adolescent offender is charged with a violent felony offense, the court's task is to review the accusatory instrument and any relevant facts to determine whether retention in the Youth Part is justified or whether removal to Family Court is warranted (CPL 722.23 [2] [a] - [c]). Specifically, the statute requires the court to determine whether the accusatory instrument alleges, and the evidence supports, the presence of at least one of three qualifying factors: (i) that 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 three 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 other 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, a laboratory ballistics report, the death certificate of Aneki Chung, and videos of the homicide. This evidence, also presented to the grand jury, provided reasonable cause to believe that defendant committed those offenses (CPL 190.65 [1]; see People v Jensen, 86 NY2d 248, 251-252 [1995]). Furthermore, because defendant is charged under the theory of acting in concert, which establishes joint liability for co-participants in the commission of the offense, and because multiple weapons were used in the homicide and assaults, resulting in significant physical injuries, for the purposes of the retention hearing, it is not necessary to identify which individual specifically caused each injury. 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: April 22, 2026

Bronx, New York

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

FOOTNOTES

1.   The grand jury presentation minutes were Court Exhibit I; a flash drive storage device was Court Exhibit II. Court exhibit 2 contained the following items: Exhibit 2 - video surveillance of the incident from 810 Burke Avenue; Exhibit 3 video surveillance from 815 Burke Avenue; Exhibit 4 additional video surveillance of another angle from 815 Burke Avenue; Exhibit 5 video surveillance from 800 Burke Avenue; Exhibit 6, a 8 ½ by 11 inch still image of a dark colored vehicle; Exhibit 7a and 7b, photographs of the complainant/decedent in Jacobi Hospital, one of his head and upper body, the second full body in hospital bed. Death certificate issued by the New York City Office of the Chief Medical Examiner (OCME) for Aneki Mervin Chung, Court Exhibit III; and a laboratory report form the New York City Police Department Police Laboratory Firearms Analysis Section, Court Exhibit IV.

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; 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.(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.