County Court, Orange County, July 30, 2024

David M. Hoovler, District Attorney (Richard Giordano of counsel), for the People.

Christopher Kleister for defendant.

The District Attorney is seeking to prevent removal of this action to Family Court pursuant to CPL 722.23 (2).

The court makes the following findings of fact and conclusions of law.

The defendant was born on XXX X, 20XX.

The defendant was arraigned on June 17, 2024, and thereafter appeared with counsel before the court on June 27, 2024, at{**84 Misc 3d at 1081} which time the six day hearing was adjourned on consent to July 24, 2024.

The defendant is charged with criminal possession of weapon in the second degree (Penal Law § 265.03 [3] [two counts acting in concert]); criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [4] [acting in concert]) and criminal possession of a firearm (Penal Law § 265.01-b [1] [two counts acting in concert]).

The felony complaint alleges that four adolescent offenders committed the above crimes in concert, in that on June 16, 2024, at 3:58 a.m., in the area of the Ramada Inn, Town of Newburgh, County of Orange and State of New York, they were in a 2016 Nissan Rogue and possessed a loaded firearm and the arresting officer recovered firearms consisting of a .40 caliber Glock (serial No. BAFW009) on the rear driver's side floor and a 9 millimeter Glock 19 (serial No. BUFR730) underneath the driver's seat. A silver revolver (serial No. W262381) was located in codefendant B.A.'s front left pants pocket. The 9 millimeter Glock 19 (serial No. BUFR730) was reported as stolen by the West Palm Beach Police Department.

The parties were given the opportunity to be heard on July 24, 2024, and present additional facts on the issue of whether the matter should be retained in the Youth Part pursuant to CPL 722.23 (2) (b). At the hearing the People presented an affidavit of operability for all three [*2]firearms together with an eyewitness affidavit from C. Torelli, wherein he attested to the following facts:

"That on 06/16/2024 at approximately 3:30AM at the Ramada Inn, 1289 NYS RT300, in the Town of Newburgh, County of Orange State of New York, I was sleeping in room 246 when one of my e[x]-girlfriends, Samantha Nugent, woke me up by banging on my door. I [t]hen went to the door and walked down to the first floor with her. Once I got downstairs I saw five kids who came up to me and told me that I was going to beg for my life. I know the one of [sic] kids to be my girlfriend, Deanna Alvarez child I just cannot think of his name right now. Deanna's kid, one black male wearing an orange sweatshirt, and one white kid wearing a white tank top then lifted their shirts and each one of them had a gun on them. That's when I saw Officer Crea and I told him that the group of kids had guns on them."

{**84 Misc 3d at 1082}The People concede that this defendant was not one of the identified codefendents who are alleged to have actually displayed the firearms. However, they argue that the matter should nevertheless remain in the Youth Part as accessorial liability should attach as the group was acting in concert. The People do concede that there exists somewhat conflicting case law, both for and against the theory of acting in concert being applicable in the Youth Part. Inasmuch as there is little appellate review of the Raise the Age statute, a review of the case law and statute is warranted.

CPL 722.23 (2) provides, in part:

"(a) Upon the arraignment of a defendant charged with a crime committed when he or she was sixteen or, commencing October first, two thousand nineteen, seventeen years of age on a class A felony, other than those defined in article 220 of the penal law, or a violent felony defined in section 70.02 of the penal law, the court shall schedule an appearance no later than six calendar days from such arraignment for the purpose of reviewing the accusatory instrument pursuant to this subdivision. The court shall notify the district attorney and defendant regarding the purpose of such appearance.

"(b) Upon such appearance, the court shall review the accusatory instrument and any other relevant facts for the purpose of making a determination pursuant to paragraph (c) of this subdivision. Both parties may be heard and submit information relevant to the determination.

"(c) The court shall order the action to proceed in accordance with subdivision one of this section unless, after reviewing the papers and hearing from the parties, the court determines in writing that the district attorney proved by a preponderance of the evidence one or more of the following 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{**84 Misc 3d at 1083} conduct or sexual contact as defined in section 130.00 of the penal law.

"(d) Where the court makes a determination that the action shall not proceed in accordance with subdivision one of this section, such determination shall be made in writing or on the record and shall include findings of fact and to the extent practicable conclusions of law.

"(e) Nothing in this subdivision shall preclude, and the court may order, the removal of an action to family court where all parties agree or pursuant to this chapter."

In support of their argument for this matter to remain in the Youth Part, the People cite several cases where a case remained in the Youth Part after the court found that a defendant acted in concert with other codefendants in causing a significant injury to a victim. In People v Colon (72 Misc 3d 785, 789 [Orange County Ct, June 21, 2021, Brown, J.]) the court retained the matter in the Youth Part pursuant to CPL 722.23 (2) (c) (i) (defendant caused significant physical injury), finding that the defendant "was acting with the state of mind required for the commission of that offense and that he played a pivotal role in the commission of that offense." The court noted that the defendant was a passenger in a "getaway" vehicle driving over 100 miles an hour, and that although he was not operating the vehicle that ultimately struck the victim's vehicle, the defendant was in the back of the van throwing multiple large motor sports vehicles out the back of the van at the pursuing police vehicles.

Likewise, the courts in People v E.B.M. (63 Misc 3d 576 [Nassau County Ct, Feb. 28, 2019, Singer, J.]) and People v Y.L. (64 Misc 3d 664 [Monroe County Ct, May 17, 2019, Ruhlmann, J.]), both cases involving significant physical injury to a victim, both retained the case in the Youth Part under CPL 722.23 (2) (c) (i) based upon the theory of acting in concert. In People v Y.L., the court found the codefendants were active participants in the crime whereby the victim was punched and kicked in the head sustaining injuries and that they shared a "community of purpose." (64 Misc 3d at 670.) Similarly, in People v E.B.M., the adolescent offender was charged as acting in concert on charges of first-degree gang assault and robbery in the second degree where it was alleged at the six day hearing that they were "continuously punching, kicking and stomping [the victim] in the head" causing significant injuries. (63 Misc 3d at 580.){**84 Misc 3d at 1084}

The Nassau County Court did, however, remove a case to Family Court over the People's contention that the AO acted in concert with another defendant where the victim sustained significant physical injury by way of stab wounds, the court there holding there was insufficient proof at the six day hearing that the AO knew his codefendant had a knife or knew he planned to use it. (People v K.F., 67 Misc 3d 607 [Nassau County Ct, Mar. 11, 2020, Singer, J.].)

Despite several published cases where a victim suffered a significant physical injury, there is no known case law to support the theory that accomplice liability principles are applicable to those cases sought to remain in the Youth Part under CPL 722.23 (2) (c) (ii) where the defendant is alleged to have displayed a firearm.

During the Assembly proceedings, Assemblyman Joseph R. Lentol, the main sponsor of the Raise the Age bill, confirmed that, referring to the three factor test now codified under CPL 722.23 (2),

"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 or own [sic] hand, and who personally engaged in the unlawful sexual conduct." (NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 tr at 51-52 [emphasis added].)

Thus the legislative history, as specific as it is, in this context provides for the opportunity to explore who "directly caused" injury and thus permit accomplice liability principles, whereas to display a firearm, by nature of design is an act performed by only one person at a time and thus, can only be committed by a "sole actor" and not subject to principles of accomplice liability. As such, this court does not find that the accomplice liability principles are applicable to this situation where this defendant was not [*4]alleged to have personally displayed a weapon and where the People have failed to establish that this defendant knew that his codefendants possessed firearms. As such and based on the foregoing, the court makes the following findings of fact and conclusions of law:

The District Attorney failed to prove by a preponderance of the evidence one or more of the provisions of CPL 722.23 (2).{**84 Misc 3d at 1085}

The District Attorney did not prove by a preponderance of the evidence that this defendant "displayed a firearm" as required by CPL 722.23 (2) (c) (ii) and the argument that accessorial liability should apply in this matter and under CPL 722.23 (2) (c) (ii) is rejected.

The District Attorney has not proved any of the factors set forth in CPL 722.23 (2) (c) by a preponderance of the evidence and this matter shall proceed in accordance with the provisions of CPL 722.23 (1).

Based on the foregoing, it is hereby ordered that this matter is to be removed to the Orange County Family Court, with J.R. to appear before the undersigned, in her capacity as Family Court Judge, on August 12, 2024, at 1:30 p.m.; and it is further ordered that the Children's Rights Society is appointed to represent J.R.