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

County Court, Monroe County, May 17, 2019

Sandra J. Doorley, District Attorney (Daniel E. Strollo of counsel), for plaintiff.

Timothy P. Donaher, Public Defender (Matthew J. Clark of counsel), for Y.L., defendant.

Neil W. Gunther for J.S., defendant.

This decision supplements the oral decision of the court rendered on March 21, 2019, in accordance with Criminal Procedure Law § 722.23 (2) (b), (c) and (d). Y.L. (DOB: xx/xx/2002) and J.S. (DOB: xx/xx/2002) are charged as adolescent offenders (AOs) in the Youth Part of the County of Monroe, with one count of the crime of attempt to commit the crime of gang assault in the first degree, in violation of Penal Law §§ 20.00, 110.00 and 120.07. Defendant Y.L. appeared with Senior Assistant Monroe County Public Defender, Matthew J. Clark, Esq., defendant J.S. appeared with counsel, Neil W. Gunther, Esq., and the People were represented by Monroe County Senior Assistant District Attorney, Daniel E. Strollo, Esq. Defendants did not object to having their cases heard together. This is a novel case. The issue is whether removal from the Youth Part of either or both of the defendants' cases to Family Court is warranted under CPL 722.23 (2) (b) and (c).

The Youth Part is required, within six days of an arraignment of an AO who is charged with a violent felony as defined in Penal Law § 70.02, to review the accusatory instrument and any relevant materials to determine if a basis exists for retaining the case in the Youth Part, or if it [*2]instead should be removed to the Family Court (CPL 722.23 [2] [a], [b], [c]). In undertaking the six day review, the Youth Part first must assess whether the accusatory instrument alleges that the AO: (1) caused significant physical injury to a person other than a participant in the offense; (2) displayed a firearm, shotgun, rifle or deadly weapon as defined in the Penal Law in furtherance of such offense; or (3) unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact as defined in Penal Law § 130.00 (CPL 722.23 [2] [c]). As part of the court's review, the People and the AO may both{**64 Misc 3d at 666} be heard and submit information relevant to the Youth Part's determination. At least one of the three factors warranting retention of the case in the Youth Part must be proved by a preponderance of the evidence (CPL 722.23 [2] [b], [c]; People v B.H., 62 Misc 3d 735, 737 [Nassau County Ct 2018]). "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' " (People v L.M., 62 Misc 3d 1227[A], 2019 NY Slip Op 50305[U], *5 [Nassau County Ct 2019], quoting 58A NY Jur 2d, Evidence and Witnesses § 978; cf. People v E.B.M., 63 Misc 3d 576 [Nassau County Ct 2019]).

This court gave the parties an opportunity to both be heard and present any additional information addressing whether each case should be retained in the Youth Part pursuant to CPL 722.23 (2) (b). At the six day review the People read from the accusatory instrument, and submitted an affirmation of ADA Strollo referencing eight exhibits which were received into evidence on an electronic disc.^[FN1] Defendants likewise were permitted, but chose not, to "submit information relevant to the determination."^[FN2] This court also heard and considered oral arguments from all parties. The People seek to retain both cases in the Youth Part because of the heinous nature of the attack which caused significant injury to the victim. This court finds the People have sustained their burden of proving by a preponderance of the evidence that both defendants' flagrant and overt actions caused significant physical injury to the victim. These cases will remain in the Youth Part.

Finding of Facts

On the afternoon of February 20, 2019, defendants (along with other individuals not charged as AOs) congregated on the sidewalk across from the main bus terminal in Rochester, New York where they encountered the alleged victim. According to the People, the victim is a [*3]homeless man who suffers from mental health issues. An individual (who was not charged as{**64 Misc 3d at 667} an AO in the Monroe County Youth Part) purportedly video recorded the incident, streaming it to "Facebook Live." The video depicts defendant Y.L. and defendant J.S. taunting, punching and kicking the victim repeatedly in his head. First, defendant J.S. punched the victim who fell to the ground. The victim struggled to his feet and attempted to walk away, but defendant Y.L. grabbed him by the head and again shoved him to the ground. Defendants J.S. and Y.L. then, in concert, repeatedly kicked the victim about the head. The victim suffered a broken nose with significant swelling to his head and extreme pain requiring hospitalization. During a several day hospital stay the victim was treated for both his physical injuries and mental health issues.

Conclusions of Law

Each defendant argues: (1) that the victim sustained no significant injury, (2) that the People have not laid proper foundation for the court to receive the "Facebook Live" video, and (3) that the court must transfer both cases to Family Court because the court cannot determine which of the AOs caused the significant injury. The court, in considering People's eight exhibits^[FN3] on whole, finds the People met their burden, that the victim sustained a broken nose during the incident, and that such injury constitutes a "significant physical injury" within the meaning of CPL 722.23 (2) (b) and (c). Significantly, University of Rochester, Strong Memorial Hospital's two CT scan results, received as People's exhibit 6, reveal the victim sustained a nasal bone fracture, associated soft tissue swelling, and frontal scalp swelling.

Although "significant physical injury" is not defined under the Penal Law, the New York Assembly envisioned it would encompass major aggravating factors including injuries resulting in bone fractures, injuries requiring surgery and injuries that result in disfigurement (NY Assembly Debate on Assembly Bill A3009-C, § 1, part WWW, Apr. 8, 2017, tr at 26). Despite defendants' arguments otherwise, the Assembly debate proceedings make clear such aggravating factors may exist alone. Specifically, a bone fracture need not require surgery to be considered an aggravating factor.

The instant case too is distinguishable from the B.H. case relied on by defendants (People v B.H., 62 Misc 3d 735 [Nassau County Ct 2018]). The B.H. court had scant "information relevant {**64 Misc 3d at 668}to the determination":^[FN4] the People did not argue the AO was the person who stabbed and/or hit the victim with a baseball bat and proffered no information "alleging that the AO was the perpetrator" (People v B.H., 62 Misc 3d at 738). In contrast, this court received eight exhibits attached to the People's affirmation, including Detective Ryan Beya's written narratives of separate interviews with defendant Y.L. and defendant J.S.

Defendants further argue that the People failed at the six day review to lay proper foundation for the "Facebook Live" video. This court acknowledges there is no certification authenticating the social media video (see e.g. CPLR 3122-a, 4518; but cf. People v Franzese, 154 AD3d 706 [2d Dept 2017]). Nonetheless "[a] video may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the [*4]equipment that the video accurately represents the subject matter depicted" (People v Oquendo, 152 AD3d 1220, 1221 [4th Dept 2017] [internal quotation marks and citation omitted]; see also People v Surdis, 275 AD2d 553 [3d Dept 2000] [admissiblity; civil rules generally applicable; CPLR 4518 (a) to be followed in a criminal case]). "[A]uthenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it, and [t]he foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted" (People v Franzese, 154 AD3d at 706 [internal quotation marks and citation omitted]). The "Facebook Live" video is not without an evidentiary foundation. During separate interviews Detective Beya played the Facebook Live video for each defendant. Defendant Y.L. identified himself as a perpetrator in the "Facebook Live" video, while defendant J.S. while viewing the video admitted to punching the victim. These separate and distinct admissions against interests laid sufficient foundation for admission of the video. This court finds for purposes of this six day review that the "Facebook Live" video is relevant, material and fairly considered.

Finally defendant Y.L. and defendant J.S. assert that the People failed to satisfy their burden of demonstrating that they each caused the victim's significant physical injury. Defendants rely in part on the unpublished decision of the Honorable Carol A. Cocchiola, in People v J.M. (Broome County Ct 2019). The{**64 Misc 3d at 669} J.M. court found that the People failed to prove by a preponderance of the evidence that the AO was the sole actor who caused the victim's broken nose. The J.M. court found, "[i]t is clear that the Legislature intended that a defendant must be the sole actor who causes the conduct outlined; that is who causes the significant injury, personally displayed the weapon, or committed the sexual misconduct" (People v J.M., Broome County Ct, 2019, Carol A. Cocchiola, J.). This court finds such a narrow interpretation inconsistent with the legislative intent behind the Raise the Age legislation. Indeed, a discussion on accomplice liability between Assemblymember Quart and Sponsor Assemblymember Lentol demonstrates that causation should not be so narrowly defined as requiring a "sole" actor.^[FN5]

The court, after assessing the totality of the evidence, finds that the People established that the defendants were not "just present or nearby" (NY Assembly Debate on Assembly Bill A3009-C, § 1, part WWW, Apr. 8, 2017, tr at 51) but were active participants in the crime. The Assembly debate proceedings reveal an adolescent offender whose case is transferred to Family Court should be "a young person who did something stupid, who committed a—a crime where there wasn't serious physical injury, not part of a gang, not part of a criminal enterprise, but simply did something stupid" (NY Assembly Debate on Assembly Bill A3009-C, § 1, part WWW, Apr. 8, 2017, {**64 Misc 3d at 670}tr at 49-50). The instant cases are contrary. Here, the People established at the six day review each defendant not only aided and shared a "community of purpose" with his codefendant but also admitted directly participating in the attack on the victim resulting in his significant physical injury (see People v Bittles, 170 AD3d 1600, 1601 [4th Dept 2019], quoting People v La Belle, 18 NY2d 405, 412 [1966]).

As previously stated on March 21, 2019, the court concludes that circumstances are present, sufficient to prevent the removal of these actions to Family Court. The People's motion to prevent removal is thus granted and the cases shall remain in the Monroe County Youth Part.

"MR. QUART: Mr Lentol, I wanted to ask you a question about accomplice liability under the statute. And the test which you've—the statute describe and you've discussed—

"MR. LENTOL: Yes.

"MR. QUART:—the test on whether an individual under the age of 18 is removed or is adjudicated in family court, it would disqualify a defendant who causes significant physical injury who displays a weapon or firearm or who engages in unlawful sexual conduct; however, my question is, would this test also disqualify those who are just present or nearby during the alleged offense or occurrence?

"MR. LENTOL: No. This test requires that the defendant be the sole actor, be the sole actor who causes the conduct outlined in this test. Again, in talking to Mr. Ramos, you can understand why we want to do that, because kids happen to get in trouble together all the time and may—it may be just the one guy that really is the bad one—bad apple in the group, and we don't want to punish all of them. It would also disqualify the defendant who directly caused the injury, who displayed the weapon in his . . . own hand, and who personally engaged in the unlawful sexual conduct" (NY Assembly Debate on Assembly Bill A3009-C, § 1, part WWW, Apr. 8, 2017, tr at 51-52).