County Court, Nassau County, January 28, 2020

Madeline Singas, District Attorney (Victoria Mauri of counsel), for plaintiff.

Christopher Graziano for adolescent offender.

The defendant in this matter, J.H. (DOB 00/00/2002), 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 gang assault in the first degree (Penal Law § 120.07) and with one count of assault in the first degree (Penal Law § 120.10 [1]). The within decision and order is issued following the court's review of the accusatory instrument, arguments by counsel and other relevant facts pursuant to CPL 722.23 (2) (b).

The charges filed against the AO relate to an incident alleged to have taken place on January 8, 2020, at about 2:40 p.m. in U., X.X., New York. The AO was arrested on January 12, 2020, and was arraigned by an Accessible Magistrate on January 12, 2020. On January 17, 2020, the court conducted a "sixth-day appearance" pursuant to CPL 722.23 (2) (c), for the purpose of reviewing the accusatory instrument and deciding whether the AO's case is disqualified from automatic removal to the Family Court.

CPL 722.23 provides that, with limited exception, AO matters are to be automatically removed to the Family Court unless, within 30 days of the AO's arraignment, the People move to prevent removal of the action. (CPL 722.23 [1] [a].) However, in cases, such as this one, where the AO has been charged with one or more violent felonies, the Youth Part judge is required to schedule an appearance no later than six calendar days following arraignment to review the accusatory instrument and "any other relevant facts" and determine whether the matter will proceed toward automatic removal to Family Court under CPL 722.23 (1) (a) or be disqualified from such removal and remain in the Youth Part for all future proceedings. (CPL 722.23 [2] [b].)

At that sixth-day appearance, the court is required to review the accusatory instrument and[*2]"any other relevant facts" to determine whether the People prove, "by a preponderance of the evidence," one or more of the following three aggravating factors

"as set forth in the accusatory instrument:

"(i) the defendant caused significant physical injury to a person other than a participant in the offense;{**66 Misc 3d at 781} 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." (CPL 722.23 [2] [c].)

Both parties may be heard and submit information relevant to the court's determination. (CPL 722.23 [2] [b].) If the People satisfy their burden, then the case is disqualified from proceeding towards automatic removal to the Family Court provided for under CPL 722.23 (1) (a).

At the sixth-day appearance in this matter, the People did not call any witnesses or introduce any documents into evidence; they read from the felony complaint and asserted additional hearsay-based facts. Counsel for the defense did not call any witnesses or introduce any documents into evidence. Both parties presented arguments based on the allegations in the accusatory instrument and the additional hearsay facts asserted by the People.

It is alleged in the felony complaint that on or about January 8, 2020, at about 2:40 p.m. at W. Street in U., X.X., New York, the AO and four arrestees confronted the victim. It is further alleged that one arrestee (not this AO) stabbed the victim with a knife in his lower left abdomen, and that two arrestees (neither one this AO) struck the victim with a baseball bat in the head causing a serious physical injury. It is alleged that this AO and another arrestee punched and kicked the victim's three friends causing them to suffer substantial pain and bruises about the body, preventing them from aiding the victim. It is further alleged that the victim suffered an intercranial bleed and a stab wound to his lower left abdomen.

At the sixth-day appearance, the People further alleged that on the date of the alleged incident, the victim had friends present who tried to stop the others from injuring the victim, and the AO and other defendants stopped the victim's friends from helping by causing the victim's friends "substantial pain." The People reiterated that the victim sustained an intercranial{**66 Misc 3d at 782} bleed and stab wounds, and that he was hospitalized for his injuries.

The purpose of the sixth-day appearance under CPL 722.23 (2) is for the court to review the accusatory instrument and "other relevant facts" to determine whether the People have proved by a "preponderance of the evidence" the presence of one or more of three statutory factors "as set forth in the accusatory instrument." (CPL 722.23 [2] [b], [c].) "To establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred." (Matter of Beautisha B. [Racquirine A.], 115 AD3d 854, 854 [2d Dept 2014]; People v Giuca, 33 NY3d 462, 486 [2019] [in dissent].)

The statutory provision governing the sixth-day appearance 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].) However, it has been this court's practice, and the apparent practice of other Youth Part courts, to consider the accusatory [*3]instruments and supporting depositions, and, as is the case "with most pretrial hearings," to also consider hearsay evidence. (People v B.H., 62 Misc 3d 735, 739-740 [Nassau County Ct 2018]; People v J.W., 63 Misc 3d 1210[A], 2019 NY Slip Op 50458[U] [Sup Ct, Kings County 2019]; People v Y.L., 64 Misc 3d 664 [Monroe County Ct 2019].)

The issue in this case is whether the People have proved by a "preponderance of the evidence" that this AO "caused significant physical injury to a person other than a participant in the offense." (CPL 722.23 [2] [c] [i].) The court finds, notwithstanding the severity of the injuries sustained by the victim, that the People have failed to satisfy their burden in proving that this AO "caused" the victim's injuries. The People conceded at the sixth-day appearance that the AO did not directly cause the victim's stab wounds or intercranial bleeding. The court is not persuaded by the People's argument that the court must consider "accomplice liability" when determining whether one of the three statutory factors is present for the purposes of the sixth-day appearance.

The court is obligated to interpret CPL 722.23 (2) to effectuate the intent of the legislature, and in this case, the court finds that the subject statutory language is clear and unambiguous and therefore should be construed to give effect to the{**66 Misc 3d at 783} plain meaning of the words used therein. (People v Brown, 115 AD3d 155, 158 [2d Dept 2014], affd 25 NY3d 247 [2015].) The court finds, giving effect to the "plain meaning" of the words used therein, that CPL 722.23 (2) (c) (i) is intended to disqualify an AO's case from removal to Family Court, when he or she directly "caused significant physical injury" to a nonparticipant in the offense. The court finds no basis in the statutory language to expand the scope of disqualification to include individuals who did not directly cause significant injury.

Even if the plain language used in CPL 722.23 (2) (c) (i) were arguably ambiguous, further analysis leads this court to the same conclusion. The legislative history of the 2017 Raise the Age (RTA) legislation reveals that the objective of RTA is to treat 16 and 17 year olds as children and not as adults, and to, whenever possible, give them the opportunity to get back on the right track. (NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 [Assembly tr] at 67, 86.) Legislators contemplated that, with limited exception, the "overwhelming bulk" of cases would be removed from the Youth Part to the Family Court. (Assembly tr at 37.)

Furthermore, legislators expressly addressed the question of whether an AO who did not directly cause a significant injury should still be disqualified from removal to Family Court. Assembly Member Joseph Lentol stated that the "caused significant physical injury" factor is intended to disqualify "the sole actor who causes the conduct outlined in this test" and to disqualify "the [AO] who directly caused the injury, who displayed the weapon in his or [her] own hand." (Assembly tr at 51-52 [emphasis supplied].)

The court recognizes that there could be circumstances where the People prove, for the purposes of the sixth-day appearance, that more than one individual "directly caused" significant injury to a nonparticipant. (See People v E.B.M., 63 Misc 3d 576, 583 [Nassau County Ct 2019].) Similarly, there could be circumstances where the People prove that several accomplices all took such a clear and active role in causing the complainant's injuries, that it would be impossible to pinpoint exactly which specific actor was directly responsible for causing the significant injury. Those circumstances are not present in this case. The court agrees with defense counsel that the allegations in the felony complaint and the additional factual allegations asserted by the People at the sixth-day appearance are insufficient to prove, by a preponderance of the evidence, that{**66 Misc 3d at 784} the AO "caused significant physical injury" to the victim in this case. [*4]Accordingly, the court finds that the People failed to satisfy their burden and the AO's matter will be removed to the Family Court.