Felony complaints having been filed against J.T.J. ("Principal"), alleging Principal committed Robbery in the 1st Degree and Robbery in the 2nd Degree on October 15, 2020, and the People having orally moved pursuant to Criminal Procedure Law § 722.23(2) et seq. for a determination that this action should not proceed in accordance with CPL § 722.23(1) et seq., and Noha Elnakib, Esq. (ADA) having appeared on behalf of the People in support of the motion, and Gina DePrima, Esq., having appeared on behalf of the Principal in opposition to the motion, and upon the reading of the felony complaints, supporting deposition and statements of the Principal and co-defendant, and oral argument having been held on October 20, 2020, and due deliberation having been had thereon, the Court makes the following written findings and determination pursuant to CPL § 722.23(2)(c):

This action was commenced by way of felony complaints which charges Principal with [*2]Robbery in the 1st Degree, a Class B Felony, as defined by Penal Law § 160.15(3), and Robbery in the 2nd Degree as defined by Penal Law § 160.10(1). It is alleged that the crimes occurred on October 15, 2020.

Principal was born on October 1, 2003. Principal was brought before Youth Part because he was sixteen years old when the alleged crimes were committed. Thus, under the Raise the Age legislation ("RTA"), Principal is considered an "Adolescent Offender" (hereinafter, "AO").

AO was arraigned on October 15, 2020 by Accessible Magistrate Mark Gruber. On October 20, 2020, the People moved pursuant to CPL § 722.23(2)(c)(i) for a determination that during the alleged crime Principal caused significant physical injury to a person other than a participant in the offense. The People argued that the accusatory instruments, supporting deposition and AO's statement sufficiently set forth a claim of significant physical injury in that Principal is alleged to have struck Complainant in the head with a rubber mallet causing bleeding that required three staples to close. Additionally, the People argued that complainant sustained substantial pain and bruising to the rib cage. As such, the matter should not proceed in accordance with CPL § 722.23(1) but should remain in Youth Part.

Defense Counsel ("Counsel") argues that the injuries allegedly sustained by complainant amounts to physical injury as defined by Penal Law § 10.00(9) and would not qualify as significant physical injury under RTA. Moreover, Counsel asserts that any claim of complainant requiring three staples to close the wound was never pled. Although the People raised this fact during oral argument, it was not raised in the moving papers nor supported by medical records.

CPL § 722.23(2)(c)(i) mandates a review of the accusatory instrument and any other relevant facts for the purpose of making a determination whether the People proved by a preponderance of the evidence that the Principal caused significant physical injury to a person other than a participant in the offense. Preponderance of the evidence standard requires enough evidence to "produce a reasonable belief in the truth of the facts asserted." See, Jarrett v. Madifari, 67 Ad2d 396, 404 [1st Dept 1979].

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."

Here, during oral argument the People stated that the complainant suffered lacerations to his head which required staples to close to stop the bleeding, in addition to, substantial pain and bruising to the rib cage. The People did not produce medical records supporting the claim that staples were required nor was it alleged in the moving papers. The People rely on the oral record of the ADA as an officer of the court.

Whether medical records are required on the issue of significant physical injury relative to the CPL § 722(2) et seq. reading was addressed by Hon. Conrad D. Singer in People v. [*3]E.B.M., 63 Misc 3d 576, 95 N.Y.S. 3d 743, 2019 NY Slip Op 29055, wherein he held it is unnecessary for the People to produce such records since the purpose of the review is to determine the existence of preponderance of the evidence based upon any relevant information. This Court agrees.

With respect to information permissible for review by the Court, CPL § 722(2)(b) includes a review of the accusatory instruments and "any other relevant facts", including the supporting deposition, statements of the AO and co-defendant, as well as hearsay evidence offered by the parties.

This Court held in People v. A.S., 62 Misc 3d 1210 (A), 113 N.Y.S. 3d 475, 2019WL 722905, 2019 NY Slip Op 50187(U), that lacerations to complainant's head caused by the use of a weapon that required staples to close in order to stop the bleeding was significant physical injury consistent with the legislative intent. This Court looked to decisional law for guidance in defining significant physical injury and agreed with Judge Norman St. George in People v. B.H., supra, 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. This is the case here.

While the court finds significant injury with respect to the alleged head injury it should be noted that it is not believed that the People's claim that complainant suffered substantial pain and bruising to the rib cage is anything more than physical injury as defined by PL § 10.00(9).

Hence, the People have sufficiently proved by a preponderance of the evidence that Principal caused significant physical injury to a person other than a participant in the offense. This action therefore shall not proceed in accordance with CPL § 722.23(1) et seq. and shall remain in Youth Part.

So, Ordered.