County Court, Nassau County, March 21, 2019

Madeline Singas, District Attorney, for plaintiff.

N. Scott Banks, Legal Aid Society (Jenna Suppon of counsel), for defendant.

The defendant in these matters, M.M. (DOB xx/xx/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 first felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the first degree (Penal Law § 160.15 [3]), a class B felony; by way of a second felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the first degree (Penal Law § 160.15 [3]), a class B felony; and by way of a third felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the first degree (Penal Law § 160.15 [4]), a class B felony.^[FN*] The within decision and order is issued following the court's review of the accusatory instruments, arguments by counsel and other relevant facts pursuant to CPL [*2]722.23 (2) (b).

The People have filed these separate felony complaints against the AO relating to three incidents alleged to have taken place on January 13, 2019, January 25, 2019, and February 25, 2019, respectively. The AO was arrested on February 28, 2019, and was arraigned in the Youth Part of the Nassau County Court on March 1, 2019. At the arraignment, the court placed bail on the AO and issued temporary orders of protection which required him to stay away from each of the victims involved in his cases. The court scheduled an appearance for March 7, 2019, the sixth day after his arraignment, for the purpose of determining whether any of the cases would be disqualified{**63 Misc 3d at 774} from automatic removal to Family Court pursuant to CPL 722.23 (2) (c).

The defendant in these matters is classified as an AO pursuant to the recently enacted "Raise the Age" (RTA) legislation, which was signed into law on April 10, 2017. 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. (CPL 1.20 [44].) 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 this newly-added AO category. (McKinney's Cons Laws of NY, New York Sentence & Related Law Charts, Chart VIII, Adolescent & Juvenile Offenders.) To that end, the 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]).

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 arraigned on violent felony charges, 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" (CPL 722.23 [2] [b]) 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].)

At that sixth-day appearance, the court is required to review the accusatory instrument and "any other relevant facts" to determine whether the People prove, "by a preponderance of the evidence," one or more of the following three 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; 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{**63 Misc 3d at 775} 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 [*3]disqualified from proceeding towards automatic removal to the Family Court provided for under CPL 722.23 (1) (a).

On March 7, 2019, the sixth day after the AO's arraignment, the court held an appearance for the purposes of determining whether these matters would remain in the Youth Part pursuant to CPL 722.23 (2) (c). At that appearance (hearing), the People did not call any witnesses and did not introduce any documents into evidence. The People read the allegations from each of the three felony complaints at issue and asserted additional hearsay-based facts, including those taken from supporting depositions of the respective complainants and other eyewitnesses, and from the AO's videotaped statement of admission. 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 instruments and the foregoing additional hearsay facts.

FYC-xxxxx-xx/xxx

It is alleged in the felony complaint that on January 13, 2019, at approximately 9:13 p.m., in Rockville Centre, Nassau County, the AO lured the complainant to the place of occurrence with the promise of buying the complainant's iPhone cell phone. It is further alleged that while in front of the subject location, the AO took the cell phone from the complainant's hand without making any payment and when the complainant attempted to regain his property, the AO stated "[s]tep back or I'll boom you," while reaching into his waistband. The complainant was caused to fear for his life and the AO then ran from the place of occurrence with the complainant's cell phone.

At the sixth-day appearance (hearing), the People read from the supporting depositions of the complaining witness and an eyewitness, who both reported that they saw the AO reach toward his waistband, and that they believed he had a gun and feared for their safety. The People also stated that the AO's videotaped statement of admission did not include a reference to a gun.{**63 Misc 3d at 776}

FYC-xxxxx-xx/xxx

It is alleged in the second felony complaint that on January 25, 2019, at about 9:00 p.m., in Lakeview, Nassau County, the AO lured the complainant via social media to the Lakeview Public Library with the promise of buying her gold rope necklace and her silver necklace. The AO allegedly got into the complainant's vehicle without her consent while placing his hand in his pocket as if he had a handgun and demanded that she drive. The complainant, in fear for her safety, stopped her vehicle and jumped out screaming for help.

At the sixth-day appearance (hearing) the People stated that the allegations regarding the AO placing his hand in his pocket, as if he had a handgun, were based on statements told to a detective after the initial supporting deposition had been signed.

FYC-xxxxx-xx/xxx

It is alleged in the third felony complaint that on or about February 25, 2019, at about 6:50 p.m., in Roosevelt, Nassau County, the AO lured the complainant via social media to the place of occurrence with the promise of buying her iPhone cell phone and that while in the yard of the said location, the AO took the cell phone from the complainant's hand. When the complainant attempted to regain her property, the AO displayed a black handgun and said to her "[y]o I got a glock on me, don't fuck with me, I will shoot you right now." The AO then ran from the place of occurrence with the victim's cell phone.

At the sixth-day appearance the People cited to the supporting deposition from the complainant, which confirmed that the complainant believed that what appeared to be a black handgun was displayed when the AO threatened to shoot her. The People also cited to the AO's videotaped statement of admission, in which the AO admitted that he acted as if he had a gun and that he referenced a "Glock," but he denied actually having a gun.

The People argued that all three of these cases should remain in the Youth Part because they adequately pleaded and proved "by a preponderance" that in each case the AO "displayed a firearm . . . or deadly weapon as defined in the penal law in furtherance of such offense." (CPL 722.23 [2] [c] [ii].) The defense counsel argued that it was not even a "close call" and that the People did not meet their burden with respect to any{**63 Misc 3d at 777} of these cases. The parties' respective positions arose from opposing views on the statutory meaning of "display" as used in CPL 722.23 (2) (c) (ii).

The People contended that "display" does not necessarily only refer to an actual firearm but can instead be interpreted as what the victim perceives to be a firearm, including situations where the AO's words or actions suggest it is a firearm. In support of their position, the People cited to several cases, including People v Smith (29 NY3d 91 [2017]), where the Court of Appeals examined the meaning of "display" as used in Penal Law § 160.15 (4). The People argued that the relevant standard for determining whether the AO "displayed" a firearm or deadly weapon under CPL 722.23 (2) (c) (ii) is "whether a reasonable person would believe that defendant displayed a firearm." The People cited to the Court of Appeals' articulation of a two-part test as stated in People v Smith: first, that the defendant consciously displayed something that could reasonably be perceived as a firearm; and second, that it appeared to the victim by sight, touch or sound that the victim was threatened by the firearm.

The People cited to other cases, including People v Akinlawon (158 AD3d 1245 [4th Dept 2018]) and People v Jenkins (118 Misc 2d 530 [Sup Ct, NY County 1983]) and argued that the term "display" does not require them to prove that it was actually a firearm that was displayed. They further argued that "display" for the purposes of the sixth-day appearance can be "to the eye or to the mind" and that a firearm need not actually have been seen by the witness, so long as the AO's actions made it appear to the witness that he had a firearm. The People argued that they had met the threshold requirements of CPL 722.23 (2) (c) "regardless of whether an actual firearm" or a BB gun was displayed, or if it was just the simulation of a weapon, especially considering the threats from the AO that he had a firearm and that the victims were [*4]placed in fear and believed that the AO had a gun.

Defense counsel argued that the People's definition of "display" was based on a conflation of two separate legal principles, in that the People were not arguing about the meaning of "display" for the purpose of CPL 722.23 (2) (c), but were instead arguing about the legal sufficiency of proving that a defendant had committed robbery in the first degree pursuant to Penal Law § 160.15 (4). Defense counsel argued that the statutory language at Penal Law § 160.15 (4) clearly provides {**63 Misc 3d at 778}for when a defendant displays "what appears to be" a firearm, while the "what appears to be" language is absent from CPL 722.23 (2) (c). Defense counsel further argued that if the legislature intended that cases where the AO displayed "what appears to be" a firearm or deadly weapon would be disqualified from removal to Family Court, then they would have included that language in CPL 722.23 (2) (c), just as they included the "what appears to be" language in Penal Law § 160.15 (4). Defense counsel argued that because the "what appears to be" language is absent from CPL 722.23 (2) (c), the People are required to plead and prove that an AO displayed an actual firearm or deadly weapon for the case to be disqualified from removal to Family Court.

Defense counsel also argued that a "deadly weapon" is defined under the Penal Law as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged" (Penal Law § 10.00 [12]) and that in this case the People had not presented a "shred of evidence" to indicate that the AO had displayed a deadly weapon in any of these cases. Defense counsel cited to several cases addressing the meaning of "deadly weapon," including People v Shaffer (66 NY2d 663 [1985]) and People v Grice (84 AD3d 1419 [3d Dept 2011]), and argued that a gun must be both operable and loaded with live ammunition to constitute a "deadly weapon." Defense counsel pointed out that in the case where it was alleged in the accusatory instrument that the AO had displayed a black handgun, the People admitted that the AO had denied ever actually possessing any weapon.

Defense counsel further argued that a side-by-side comparison of the statutory language used in CPL 722.23 (2) (c) (ii) compared to Penal Law § 160.15 (4) makes it "crystal clear" that the legislature did not intend for "display" under CPL 722.23 (2) (c) (ii) to include "what appears to be" a firearm or deadly weapon.

As stated above, 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 proved by a "preponderance of the evidence," as set forth in the accusatory instrument, the presence of one or more of three factors that will "disqualify" the AO's case from {**63 Misc 3d at 779}proceeding toward removal to the Family Court; including, as relevant here, that the AO "displayed a firearm . . . or deadly weapon as defined in the penal law in furtherance of such offense." (CPL 722.23 [2] [c] [ii].) The statute provides that both parties may be heard and submit information relevant to the determination. (CPL 722.23 [2] [b].) At the sixth-day appearance, the court may consider the accusatory instruments as well as supporting depositions and "as with most pretrial hearings, hearsay evidence may be admitted." (People v B.H., 62 Misc 3d 735, 739-740 [Nassau County Ct 2018], 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.)

I. Statutory Meaning of "Display" as Used in CPL 722.23 (2) (c) (ii)

The court is tasked with determining the statutory meaning of "display" as used in CPL 722.23 (2) (c) (ii) to determine if the People proved "by a preponderance of the evidence" that in these cases the AO "displayed a firearm . . . or deadly weapon" in furtherance of the offense with which the AO has been charged. Accordingly, the court must "ascertain the legislative intent and construe the pertinent statutes to effectuate that intent." (People v Roberts, 31 NY3d 406, 418 [2018], citing Matter of M.B., 6 NY3d 437, 447 [2006].) "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof." (Roberts, 31 NY3d at 418, citing People v Golo, 26 NY3d 358, 361 [2015].) "If the words chosen have a 'definite meaning, which involves no absurdity or contradiction, then there is no room for construction and courts have no right to add or take away from that meaning.' " (Roberts, 31 NY3d at 418, citing People v Robinson, 95 NY2d 179, 182 [2000].)

The court is not persuaded that the statutory definition that courts have given to the word "display" in the context of Penal Law § 160.15 (4) and other Penal Law provisions defining criminal offenses (e.g. Penal Law § 160.10 [2] [b] [robbery in the second degree]; Penal Law § 140.30 [4] [burglary in the first degree]) also applies to the word "display" as used in CPL 722.23 (2) (c) (ii). In each of those Penal Law provisions defining criminal offenses the word "display" is used in the phrase {**63 Misc 3d at 780}"what appears to be" while the "what appears to be" language is absent from CPL 722.23 (2) (c) (ii). The word "displayed" by itself has a definite meaning, involving no absurdity or contradiction, and thus this court is obligated to construe the statutory language as it appears, without adding to that meaning by inserting the phrase "what appears to be" as the People argue the court should do. (Roberts, 31 NY3d at 418; People v Robinson, 95 NY2d 179, 182-183 [2000].) Nothing in the plain language of the statute indicates that CPL 722.23 (2) (c) (ii) is intended to extend to cases where the AO has not displayed an actual firearm or "deadly weapon," but has only displayed "what appears to be" a firearm or deadly weapon. To endorse the statutory definition of "display" proffered by the People would require this court to ignore the words as written. (Robinson, 95 NY2d at 183.)

The court is thus required to give the term "display" its "ordinary" and "commonly understood" meaning and in doing so, the court can use dictionary definitions as "useful guideposts." (People v Andujar, 30 NY3d 160, 163 [2017]; People v Ocasio, 28 NY3d 178, 181 [2016].) To that end, the "ordinary" and "commonly understood" meaning of display is to show or make something evident. (See Merriam-Webster Online Dictionary, display [https://www.merriam-webster.com/dictionary/display] [defining "display" as "to put or spread before the view"; "to make evident"; or "to exhibit ostentatiously"]; People v Smith, 29 NY3d 91, 103 [2017, Wilson, J., dissenting].) Thus, CPL 722.23 (2) (c) (ii) requires that in order for an AO's case to be disqualified from removal to the Family Court, the People must prove, by a preponderance of [*6]the evidence, that the AO showed or "exhibited ostentatiously" an actual firearm or "deadly weapon as defined in the penal law." (CPL 722.23 [2] [c] [ii].)

The court additionally notes that this interpretation of the law is supported by the legislative history of the 2017 RTA legislation. (Roberts, 31 NY3d at 423; see also Andujar, 30 NY3d at 166 ["While 'the words of the statute are the best evidence of the Legislature's intent,' legislative history may also be relevant as an aid to construction of the meaning of words"].) The Assembly's Record of Proceedings reveals that the underlying object of RTA is "to treat 16- and 17-year-olds not as adults, but as children," because "they are children and they are immature" and "[a]s children, they should always have an opportunity to get back on the right track." (NY Assembly Debate {**63 Misc 3d at 781}on Assembly Bill A03009C, part WWW, Apr. 8, 2017 at 67, 86.) To that end, legislators intended that "in the overwhelming bulk of the cases . . . the matter will be promptly transferred from the adult [Youth Part] court to the family court." (Id. at 37.) Considering that the legislative intent behind RTA is to treat 16-year-old offenders different from adults and to implement a mechanism that will facilitate the transfer of the majority of cases to the Family Court, it would be illogical for the court to construe CPL 722.23 (2) (c) (ii) in a way that expands the reach of the provision to cases that would otherwise proceed toward automatic removal to the Family Court under CPL 722.23 (1) (a).

II. Statutory Meaning of "Firearm" and "Deadly Weapon" in CPL 722.23 (2) (c) (ii)

Turning to the remaining undefined statutory terms in CPL 722.23 (2) (c) (ii), the court finds that the terms "firearm" and "deadly weapon" are defined elsewhere in the Penal Law. Penal Law § 265.00 (3) defines "firearm," as relevant here, as "(a) any pistol or revolver." As relevant here, "deadly weapon" is defined in the Penal Law as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged." (Penal Law § 10.00 [12].)

III. The People's Burden to Prove "By a Preponderance of the Evidence" That the AO Displayed a Firearm or Deadly Weapon

In this case, the court finds that the People have failed to meet their burden of proving "by a preponderance of the evidence" that in any of the cases the AO "displayed a firearm . . . or deadly weapon" in furtherance of any of the offenses with which he has been charged. In the FYC-xxxxx-xx/xxx felony complaint the People alleged only that the AO reached into his waistband while making a threat about shooting; there are no allegations or additional facts indicating that there was an actual firearm or deadly weapon displayed. Likewise, in the FYC-xxxxx-xx/xxx felony complaint the People only alleged and proved that the AO placed his hand in his pocket "as if he had" a handgun, but there are no allegations or facts indicating that he displayed an actual handgun.

The felony complaint in FYC-xxxxx-xx/xxx involves a closer call than the other two [*7]cases, because in that case the felony complaint alleges that the AO "displayed a black handgun" and threatened to shoot the complainant. However, at the sixth-day appearance the People cited from the complaining witness's supporting deposition that "what appeared to be a black {**63 Misc 3d at 782}handgun" (emphasis added) was displayed when the AO threatened to shoot her and they also referenced that in the AO's videotaped statement of admission he admitted that he acted as if he had a gun but he denied actually having a gun. As defense counsel pointed out, the People did not provide any evidence that an actual firearm or deadly weapon was recovered in connection with that incident. In light of the foregoing, the court finds that the People failed to prove, by a preponderance of the evidence, that the AO displayed an actual firearm or deadly weapon in furtherance of the offense for which he has been charged under the felony complaint in FYC-xxxxx-xx/xxx.

Accordingly, the People have failed to prove, by a preponderance of the evidence, a basis for retaining the matters under FYC-xxxxx-xx/xxx, FYC-xxxxx-xx/xxx and/or FYC-xxxxx-xx/xxx in the Youth Part pursuant to CPL 722.23 (2). These matters will therefore proceed towards automatic removal to the Family Court pursuant to CPL 722.23 (1). However, the People are permitted to file a motion to prevent removal of any or all of these cases within 30 days of the arraignment based on "extraordinary circumstances." (CPL 722.23 [1] [d].) The arraignment of these cases having taken place on March 1, 2019, the matter will be removed to the Family Court on April 1, 2019, with the AO to appear before the Honorable Conrad Singer in the Family Court on April 1, 2019, at 9:00 a.m., absent a motion by the People before that date and further order of this court.