The People having filed a felony complaint against the A.S. ("Defendant"), alleging that the Defendant committed robbery on December 11, 2018, and having orally moved pursuant to Criminal Procedure Law § 722.23(2) et seq. for determination that this action shall not proceed in accordance with § 722.23(1) et seq., and for an order preventing removal of this action to the [*2]juvenile delinquency part of Erie County Family Court, and James Marra, Esq. (Assistant District Attorney) having appeared on behalf of the People, in support of the motion, and Dean Puleo, Esq., having appeared on behalf of the Defendant, in opposition to the motion, and upon the reading of the felony complaint, and oral argument having been held on January 15, 2019, and due deliberation having been had, the Court makes the following written findings and determination pursuant to CPL § 722.23(2)(c):

The action was commenced by way of a felony complaint which charges the Defendant with Robbery in the 1st Degree, a Class B Felony, as defined by Penal Law § 160.15(1) and (2), as modified by § 20.00 of the Penal Law. It is alleged that the crime occurred on December 11, 2018.

Defendant was born on December 18, 2001. The Defendant was brought before Youth Part because he was sixteen years old when the alleged crime was committed. Thus, under the Raise the Age legislation ("RTA"), the Defendant is considered an "Adolescent Offender."

Defendant was arraigned by an accessible magistrate on January 7, 2019. He was held on bail. On January 9, 2019, Defendant waived the preliminary hearing time requirement pursuant CPL § 180 et seq., and further agreed that review of the accusatory instrument pursuant to CPL § 722.23(2)(a) to determine factors as set forth in CPL § 722.23(2)(c) would be scheduled on January 15, 2019.

On January 15, 2019, the People moved pursuant to CPL § 722.23(2)(c) for a determination by the Court that during the alleged robbery the Defendant caused significant physical injury to the complainant who was not a participant in the offense. As such, the matter should not proceed in accordance with CPL § 722.23(1) and should not be removed to the juvenile delinquency part of Erie County Family Court.

In support of its application, the People argued that the accusatory instrument set forth a claim of "serious physical injury" that would satisfy the RTA requirement that "significant physical injury" be shown by a preponderance of the evidence.

The relevant factual part of the felony complaint states the following:

The said defendant [AS], along with an outstanding male co-defendant, while each being intentionally aided by or while aiding the other, at the aforesaid time and place, did forcibly steal property and when in the course of the commission of the crime or in immediate flight therefrom, he or another participant in the crime caused a serious physical injury to any person who is not a participant in the crime. In that the complainant on 12/11/2018 at approximately 2024 HRS. While delivering food at 49 Holmes, the defendant and an outstanding male co-defendant did display and strike the complainant in the head (4) times with a black pistol. The defendant and co-defendant did take $200.00 cash from the complainant. The defendant and outstanding male co-defendant did break complainant left wrist during [the] altercation and complainant did receive staples in his head, taking without permission $200.00 cash. While in the course of the commission of this robbery defendants did possess a firearm and did ass[a]ult the complainant.

The said defendant [AS], along with an outstanding male co-defendant, while each being intentionally aided by or while aiding the other, at the aforesaid time and place, did forcibly steal property and when in the course of the commission of the crime or in immediate flight therefrom, he or another participant in the crime was armed with a deadly weapon. In that the complainant on 12/11/2018 at approximately 2024 HRS. [*3]While delivering food at 49 Holmes, the defendant and an outstanding male co-defendant did display to and strike the complainant in the head (4) times with a black pistol. The defendant and co-defendant did take $200.00 cash from the complainant. The defendant and outstanding male co-defendant did break complainant left wrist during [the] altercation and complainant did receive staples in his head. While in the course of the commission of this robbery the defendants did possess a firearm and did ass[a]ult the complainant.

In addition to the factual part of the accusatory instrument, the People produced and relied upon Erie County Medical Center medical records in which it states the complainant herein suffered a broken left wrist and received staples in his head due to lacerations.

CPL § 722.23(2)(c)(i) mandates that the People show by a preponderance of the evidence that the felony complaint sets forth the Defendant caused "significant physical injury" to a person other than a participant in the offense. Preponderance of the evidence standard requires evidence sufficient to "produce a reasonable belief in the truth of the facts asserted." (58A NY Jur 2d Evidence and Witnesses § 978)

RTA does not define significant physical injury. Thus, significant physical injury must be determined on a case by case basis. In defining significant physical injury, the Court looks to the intent of the legislature when drafting the legislation. As noted by Judge Norman St. George in People v. B.H., 2018 NY Slip Op 28403, it appears from a review of the RTA legislative history, that significant physical injury would be "more serious than a bruise" and would involve injuries such as "bone fractures, injuries requiring surgery and injuries resulting in disfigurement." From this the Court concludes that significant physical injury is greater than physical injury which is defined by NYS Penal Law § 10.00(9) as an "impairment of a physical condition or substantial pain" but less than serious physical injury which is defined by PL § 10.00(10) as "physical injury which creates a substantial risk of death or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

Finally, the Court looks to decisional law for guidance in defining significant physical injury. This Court agrees with Judge St. George in People v. B.H., 2018 NY Slip Op 28403, citing People v. McLean, 128 AD3d 1094, 1095 (2d Dept 2015), where it was held that significant physical injury existed where the injury arose from the use of a weapon. In the case before this Court, the felony complaint alleges that Defendant and a co-defendant, who is also an adolescent offender, together struck the complainant in the head with a "black pistol" causing complainant to suffer lacerations to his head that required staples to close the wound and stop the bleeding. A determination that lacerations to complainant's head which required staples to close and stop the bleeding is significant physical injury would be consistent with the legislative intent. The allegation of the use of a firearm in causing the injury would solidify this conclusion (it should be noted that the People acknowledged a firearm was not uncovered during the investigation). Additionally, a fair reading of the legislative history would prompt a determination that the allegation of a broken left wrist suffered by complainant would clearly fall within the meaning of significant physical injury.

In conclusion the Court determines that the People have sufficiently pled facts that would cause a reasonable person to believe the Defendant caused significant physical injury to a person other than a participant in the offense. As such, the matter shall not proceed in accordance with [*4]CPL § 722.23(1) et seq. and shall remain in Youth Part.

So, Ordered.