The People of the State of New York, Plaintiff, v J.M.B., Defendant.

County Court, Nassau County, February 28, 2019

Madeline Singas, District Attorney, for plaintiff.

Joel Salinger for E.B.M., defendant.

Alan J. Schwartz for J.M.B., defendant.

The codefendants in these actions are charged as adolescent offenders (AO) in the Youth Part of the County Court in Nassau County. The first defendant, E.B.M. (DOB June 2, 2002), is charged by way of a felony complaint with one count each of gang assault in the first degree in violation of Penal Law § 120.07, a B felony; robbery in the second degree in violation of Penal Law § 160.10 (2) (a), a C felony; and robbery in the second degree in violation of Penal Law § 160.10 (1), a C felony. The second defendant, J.M.B. (DOB May 26, 2002), is [*2]charged by way of a felony complaint with one count each of gang assault in the first degree in violation of Penal Law § 120.07, a B felony; and robbery in the second degree in violation of Penal Law § 160.10 (2) (a), a C felony; and with two counts of robbery in the second degree in violation of Penal Law § 160.10 (1), a C felony. The within decision and order is issued following the court's review of the accusatory instruments, argument by all counsel, and other relevant facts pursuant to CPL 722.23 (2) (b).

The People have filed felony complaints against each AO codefendant and against an adult codefendant, regarding an incident that is alleged to have taken place on or about February 8, 2019, at about 10:15 p.m., at Albany Avenue Bridge in Farmingdale, NY. The AO codefendants were arrested on February 14, 2019, and arraigned in the Youth Part of the County Court, Nassau County, on February 15, 2019. The court issued temporary orders of protection at each codefendant's respective arraignment, requiring each of them to stay away from the two victims in this case. The court also placed bail on each of them. The court scheduled an appearance for February 21, 2019, the sixth day after each codefendant's arraignment, for the purpose of determining whether the cases would be disqualified from removal to Family Court pursuant to CPL 722.23 (2) (c).

The codefendants in these matters are both classified as "Adolescent Offenders," a new category of defendants resulting {**63 Misc 3d at 578}from the recently enacted "Raise the Age" (RTA) legislation, which was signed into law on April 10, 2017. Effective October 1, 2018, an AO is a person charged with a felony committed on or after October 1, 2018, when he or she was 16 years of age, or on or after October 1, 2019, when he or she was 17 years of age (L 2017, ch 59, part WWW, § 106 [b]; CPL 1.20 [44]). RTA mandated the creation of a "Youth Part" in the superior court of every county to process such AOs, and which is to be presided over by a Family Court judge. (L 2017, ch 59, part WWW; CPL 722.10 [1].) The purpose of the 2017 RTA legislation was to raise the age of criminal liability and to provide a mechanism for the transfer to Family Court of many of those defendants who are within the newly-added AO category. (McKinney's Cons Laws of NY, New York Sentence & Related Law Charts, Chart VIII, Adolescent & Juvenile Offenders.)

CPL 722.23 governs the removal of AOs from the Youth Part to Family Court and provides that, with limited exception, AO matters are to be removed to the Family Court unless, within 30 days of the defendant's arraignment, the People move to prevent removal of the action. (CPL 722.23 [1] [a].) A different procedure applies where the AO has been charged with a violent felony, such as the gang assault in the first degree and robbery in the second degree charges at issue in this case. Under CPL 722.23 (2) (a), upon the arraignment of an AO charged with a violent felony, the Youth Part judge shall schedule an appearance no later than six calendar days from the arraignment for reviewing the accusatory instrument and determining whether the matter will remain in Youth Part or will proceed toward automatic removal to the Family Court as set forth under CPL 722.23 (1) (a). At that sixth-day appearance, the court is required to review the accusatory instrument and "any other relevant facts" (CPL 722.23 [2] [b]) for the purpose of determining whether the People prove, "by a preponderance of the evidence," the presence of one of three factors, including, as relevant here, "the defendant caused significant physical injury to a person other than a participant in the offense," such that the case will remain in the Youth Part (CPL [*3]722.23 [2] [c] [i]).^[FN*] Both parties may be heard and submit information relevant to the court's determination. (CPL 722.23 [2] [b].){**63 Misc 3d at 579}

The court's review of the Assembly's record of proceedings reveals that the legislators' rationale for the sixth-day appearance and the court's review of the accusatory instrument was that not all felonies defined by the Penal Law as "violent" for plea and sentencing purposes necessarily involve a violent act (for example, burglary of a dwelling, Penal Law § 140.25 [2]). (NY Assembly Debate on Assembly Bill A03009C, part WWW, Apr. 8, 2017 at 22.) Thus, legislators intended that the requirement of finding one of three factors would ensure that

"only those cases [of] the truly violent felons would stay in the criminal part, and those kids who were not violent would be able to find their way to . . . family court where they not only could get superior services, but would be able to get better outcomes for their lives not only with the services that were employed, but by not receiving a criminal record at the end of all this so that they could change their life around" (id. at 21).

On February 21, 2019, the sixth day after arraignment, the court held an appearance for the purposes of determining whether the matters would remain in the Youth Part pursuant to CPL 722.23 (2) (c). At the request of all parties and counsel, the appearance was jointly conducted with respect to the People's cases against both AO codefendants. At that appearance (hearing), the People did not call any witnesses and did not introduce any documents into evidence. The People stated that they were relying on the four corners of the accusatory instrument. However, in addition to reading allegations from the felony complaints, they also asserted additional hearsay-based facts, including by reading portions of depositions detailing the AO codefendants' actions in the incident. The People presented arguments based on the allegations in the accusatory instrument and the foregoing additional facts and rested following a rebuttal to the defense counsels' presentations.

It is alleged that on or about February 8, 2019, at about 10:15 p.m., at Albany Avenue Bridge in Farmingdale, NY, the AO codefendants acted in concert with their adult codefendant{**63 Misc 3d at 580} and with several other named individuals to rob one victim (victim No. 1) of his wallet and in the course of such robbery, that the AO codefendants and the others punched, kicked and stomped victim No. 1 in the face numerous times causing him to sustain a fractured nose, fractured orbital bone, concussion, and swelling to the eyes and face. The complaints further allege that the AO codefendants acted in concert with the other individuals and intended to cause serious physical injury to victim No. 1 by continuously punching, kicking and stomping him in the head which caused, inter alia, multiple fractures to his face, requiring surgery. The felony complaints further allege that the AO codefendants, acting in concert with the others, also robbed a second victim (victim No. 2) of his iPhone 8 and wallet.

Based on additional facts provided by the People at the sixth-day appearance (hearing), [*4]the AO codefendants allegedly "punched, kicked, and stomped [victim No. 1], an acquaintance, in the face numerous times, during a gang assault in a robbery causing [victim No. 1] to suffer a fractured nose, multiple facial fractures, a concussion, swelling to the eyes and face and substantial pain," before they took his wallet containing his driver's license, school ID and debit card. (Tr, Feb. 21, 2019 proceedings at 4, line 1.) The People read into the record victim No. 1's supporting deposition, in which he stated that "he saw" AO M. "in the light kicking and stomping him" and that another defendant punched him in the head at AO M.'s direction. (Tr, Feb. 21, 2019 proceedings at 7, line 16.)

The People further stated at the sixth-day appearance (hearing) that "everyone was punching and kicking [victim No. 1] including J.B. [and] E.M.," and that "both J.B. and E.M. attacked" victim No. 1. (Tr, Feb. 21, 2019 proceedings at 8, line 11.) The People read into the record portions of another supporting deposition which stated that "[w]hen Victim #1 fell, I saw [E.M.] stomp him in the face with his shoes. I also saw [J.B.] stomping him in the face with his shoes. I'm not sure what they were wearing but by the sound of it, didn't sound good." (Tr, Feb. 21, 2019 proceedings at 15, line 4.)

Victim No. 1 was subsequently transported to the hospital where he required reconstructive surgery of his nose and two titanium plates in his face. He was required to stay in the hospital for three days and he will have to miss school for approximately six weeks. (Tr, Feb. 21, 2019 proceedings at 4, line 21.){**63 Misc 3d at 581}

The People argued that neither AO codefendant's case should be permitted to proceed toward removal to the Family Court because victim No. 1 suffered significant physical injuries during the commission of the defendants' criminal acts, and because both AO codefendants are alleged to have individually kicked him and stomped him on his face causing the alleged sustained injuries. (Tr, Feb. 21, 2019 proceedings at 5, line 2.) The People contended that victim No. 1's injuries constituted "significant physical injury" as evidenced by his needing two metal plates in his face to enable reconstructive surgery. (Tr, Feb. 21, 2019 proceedings at 14, line 24.) They further contended that each AO codefendant caused and is personally responsible for victim No. 1's significant injuries.

Neither AO codefendant called any witnesses or proffered any documentary evidence in rebuttal to the People's presentation. Counsel for AO M. argued that the People failed to satisfy their burden because they had not alleged that AO M. "specifically caused" any of victim No. 1's "significant injuries" but instead alleged that "all of them together did something." (Tr, Feb. 21, 2019 proceedings at 10, line 13; at 11, line 5.) Counsel further argued that under the preponderance of the evidence standard there should be medical records or some other documentation or testimony to back up a claim that victim No. 1 sustained a "significant injury." (Tr, Feb. 21, 2019 proceedings at 11, line 9.)

Defense counsel for AO J.B. argued that the People failed to satisfy their burden because they never specifically stated that AO J.B. did any specific things by himself but instead used general terms such as "the group" and alleged that "they" stomped and threw punches and kicks. (Tr, Feb. 21, 2019 proceedings at 12, line 10.) Counsel further argued that "whether or not" AO J.B. threw punches or kicks is not the issue but, "whether he was directly the one who caused that significant injury." (Tr, Feb. 21, 2019 proceedings at [*5]13, line 15.) Defense counsel further argued that RTA's legislative history precluded "acting in concert" as a basis for satisfying the "causing" a significant injury factor and cited to People v B.H. (62 Misc 3d 735 [Nassau County Ct 2018]) in support thereof.

Defense counsel for AO B. closed by stating that his client is 16 years old and that in addition to the two AO codefendants,{**63 Misc 3d at 582} there were other individuals involved in the incident who are older than 16. (Tr, Feb. 21, 2019 proceedings at 15, line 21.) He stated that his client has had no prior contacts with the criminal justice system, not even in the Family Court. (Tr, Feb. 21, 2019 proceedings at 16, line 1.)

While the statute does not specify the nature and scope of the parties' opportunity to be heard at such appearance, the court agrees with Justice Norman St. George's analysis in People v B.H. (62 Misc 3d 735 [Nassau County Ct 2018]), analogizing the opportunity to be heard in the sixth-day appearance to the opportunity to be heard on the issuance of a temporary order of protection, including that in both instances the court may consider "[b]oth accusatory instruments and supporting depositions" and "as with most pretrial hearings, hearsay evidence may be admitted" (People v B.H., 62 Misc 3d at 739-740, citing People v Meggie, 184 Misc 2d 883 [Nassau Dist Ct 2000]).

The well-established preponderance of the evidence standard requires evidence that is sufficient to "produce a reasonable belief in the truth of the facts asserted." (58A NY Jur 2d, Evidence and Witnesses § 978.)

Turning to the issue of whether the People satisfied their burden of proving, "by a preponderance of the evidence," that one or both of the AO codefendants "caused significant physical injury" to victim No. 1, RTA does not define "significant physical injury." However, the court's examination of the RTA's legislative history reveals that legislators intended "significant physical injury" to fall somewhere between "physical injury" {**63 Misc 3d at 583}and "serious physical injury," both of which are already defined in the Penal Law. (Assembly Debate at 48.) Legislators anticipated that "significant physical injury . . . would include major aggravating factors . . . [such] as bone fractures [and] injuries requiring surgery." (Id. at 26 [internal quotation marks omitted].) It was further anticipated that a "significant" physical injury would be found where there was "something more serious than a bruise, but less serious than a disfigurement." (Id. at 27.) In this case, the accusatory instrument against the AO codefendants sufficiently alleges that victim No. 1 sustained a "significant physical injury," in that the defendants' punching, kicking and stomping victim No. 1 in the face is alleged to have caused him to sustain, inter alia, a fractured nose, fractured orbital bone and concussion and to have required him to undergo reconstructive surgery.

Contrary to defense counsel's argument, the People were not required to submit medical records to establish that victim No. 1 sustained a "significant injury" as CPL 722.23 (2) (a) and (b) expressly provides that the purpose of the sixth-day appearance is to review the accusatory instrument and "any other relevant facts." In this case, the court finds that the People sufficiently pleaded and proved by a preponderance of the evidence, including the additional hearsay facts set forth at the sixth-day appearance (hearing), that victim No. 1 sustained multiple facial fractures and required reconstructive surgery and the placement of titanium plates in his face and that such constitutes a "significant physical injury."

With respect to the defense counsel's argument that the People failed to satisfy their burden of demonstrating that both or either of the individual AOs "caused" victim No. 1's "significant physical injury," again, the test is whether, upon reviewing the accusatory instrument and the additional facts presented by the People at the hearing, including the additional hearsay facts identifying each AO codefendant by name as having stomped and kicked victim No. 1 in the face, and that the impact of such stomps and kicks "didn't sound good," the court finds that the People satisfied their burden of establishing, by a preponderance of the evidence, that each AO codefendant caused victim No. 1 to sustain "significant physical injuries."

Defense counsel's reliance on People v B.H. (62 Misc 3d 735 [Nassau County Ct 2018]) is misplaced, because in that case the People conceded that the defendant was not the individual who directly caused the "significant physical injuries." The {**63 Misc 3d at 584}facts of this case differ from those in People v B.H. in that in this case, the People have alleged that both AO codefendants were personally responsible for causing victim No. 1's injuries and at the sixth-day appearance, the People specifically identified each AO codefendant by his name as having "stomped" and "kicked" victim No. 1 in the face and stated that "it didn't sound good."

Furthermore, while in People v B.H. (62 Misc 3d at 741) Justice St. George held that "liability based on the AO 'acting in concert' with others . . . is precluded in the RTA's legislative history as a factor for retaining the AO's case in the Youth Part," this court finds that the court in People v B.H. cited to a portion of the legislative history which actually supports retaining these matters in the Youth Part. During the Assembly Proceedings, Assemblyman Joseph R. Lentol, the main sponsor on the RTA bill, confirmed that the legislators did not intend to punish groups of kids for the act of "one . . . bad apple." (Assembly Debate at 51.) Thus, the three-factor test does not disqualify a codefendant who was "just present or nearby" during an occurrence from having his case removed to the Family Court. (Id.) Rather, the three-factor test disqualifies an individual who directly caused the significant injury. (Id.)

In this case, the People have alleged and proved by a preponderance of the evidence that each AO codefendant was not merely "present or nearby" while victim No. 1 was viciously stomped, kicked and punched in the head. To the contrary, the People have pleaded and stated facts by a preponderance of the evidence confirming that each AO codefendant was personally responsible for directly causing victim No. 1's "significant physical injuries."

Thus, the People have satisfied their burden under CPL 722.23 (2) (c). The matters of AO E.B.M. and AO J.M.B. will both be retained in the Youth Part and will not proceed in accordance with CPL 722.23 (1). The Youth Part will retain these cases for all future proceedings.