Infants - Adolescent Offenders - Prevention of Removal to Family Court - Display of Deadly Weapon - Flare Gun

Lee C. Kindlon, District Attorney (Nicholas Pittari and Joseph Meany of counsel), for the People.

Timothy Berry for adolescent offender.

The adolescent offender (AO), born on XX/XX/2008, was 16{**88 Misc 3d at 286} years of age at the time of his arrest. AO was charged with attempted murder in the second degree, in violation of Penal Law § 125.25 (1); attempted assault in the first degree, in violation of Penal Law § 120.10 (1); attempted assault in the second degree, in violation of Penal Law § 120.05 (2); arson in the second degree, in violation of Penal Law § 150.15; and criminal possession of a weapon in the fourth degree, in violation of Penal Law § 265.01 (2). The AO was arraigned before the Honorable Michael C. Howard on July 9, 2025. AO was subsequently accused by indictment of attempted murder in the second degree, in violation of Penal Law § 125.25 (1); attempted assault in the first degree, in violation of Penal Law § 120.10 (1); and arson in the fourth degree, in violation of Penal Law § 150.05. The People requested a six-day review pursuant to CPL 722.23 (2) (a) and the six-day review commenced before the Honorable Ricja Rice on July 15, 2025.

CPL 722.23 (2) (c) requires that the court transfer an adolescent offender's case from Youth Part to Family Court unless the court finds that the People prove, by a preponderance of the evidence, the existence of one or more factors as outlined in CPL 722.23 (2) (c) (i), (ii), or (iii). As relevant here, the People argue that the factors outlined in CPL 722.23 (2) (c) (ii) exist because AO allegedly displayed a deadly weapon as defined in the Penal Law in furtherance of an offense.

"To establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not to have occurred" (People v V.A.M., 73 Misc 3d 293, 294, 297-298 [Nassau County Ct 2021]). "In determining whether the People have satisfied their burden under CPL 722.23 (2) (c), the court may consider the accusatory instrument, any supporting depositions, as well as hearsay evidence" (id., citing People v B.H., 62 Misc 3d 735 [Nassau County Ct 2018]; see People v J.W., 63 Misc 3d 1210[A], 2019 NY Slip Op 50458[U] [Sup Ct, Kings County 2019]).

At the six-day review, the People presented the following:

Exhibit 1: CD—Interview of AO

Exhibit 2: CD—Surveillance Footage

Exhibit 3: Indictment

Exhibit 4: Photo—Building Wall

Exhibit 5: Photo—Alley

Exhibit 6: Photo—Crime Scene Photo

Exhibit 7: Photo—Crime Scene Photo Close Up{**88 Misc 3d at 287}

Exhibit 8: Photo—Flare Gun with Cartridge[*2]

Exhibit 9: Photo—APD CIU Posting

Exhibit 10: Photo—Street Photograph

Exhibit 11: Photo—Suspect Photograph

No testimony was taken, and the parties agreed to rely upon oral argument and submissions of relevant case law. The court has reviewed the accusatory, exhibits, and written submissions.

It is alleged that on July 4, 2025, the AO fired a flare gun at another individual, and that the flare instead struck a residential building, causing it, and an adjacent business to catch fire. After the AO fired the flare gun, the flare went through a window into a residential building (see exhibit 2). The building and the adjacent business both caught fire. Both the residential building and the adjacent business were unoccupied at the time of the fire.

The AO was interviewed by police investigators with his aunt present. During his police interview, the AO mentioned that there was a kid at the scene who he did not like that night; the AO originally claimed that he and this individual had smoothed things over; however, the AO later admitted in his interview that there was a confrontation with some kids who were "talking shit" (see exhibit 1, 01:27:40, 01:36:30). The AO ultimately admitted that he was the one who had the flare gun and stated that he did not mean to shoot the flare into the house (see exhibit 1, 01:38:10). The AO stated that he was just trying to scare the other kids off, because he saw one of the other kids reach for something in his pants, and he "didn't want to die" (see exhibit 1, 01:38:40, 01:43:08). The AO stated that he threw the flare gun and ran. The AO reported hearing gun shots as he ran, and stated that, at the time, he thought the gun shots were being fired at him (see exhibit 1, 01:43:425).

The People further submitted video footage showing the flare gun being fired, and shortly afterwards, multiple gunshots were heard (see exhibit 2, 00:50). It is not alleged that the AO fired any of these gunshots. Rather, another adolescent offender is accused of firing the gunshots. Counsel for the AO argues that there is no connection between the AO and the shooter.

Defense counsel alleged that the AO fired the flare as a warning shot. The People alleged that the AO fired the flare at an{**88 Misc 3d at 288} individual, but missed, instead hitting a building. Defense also argued that the AO expressed significant remorse in the interview (see exhibit 1, 01:38:45).

The court finds the People have established by a preponderance of the evidence that the AO "displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense" (see CPL 722.23 [2] [c] [ii]). In making this determination, this court recognizes that the legislature intended for only the most serious offenses to be prosecuted in the Youth Part and that any less serious offense should be presumed to be handled in Family Court. In order for an AO's case to be disqualified from removal to the Family Court, CPL 722.23 (2) (c) (ii) requires that "the People must prove, by a preponderance of the evidence, that the AO showed or 'exhibited ostentatiously' an actual firearm or 'deadly weapon as defined in the penal law' " (People v M.M., 63 Misc 3d 772, 780 [Nassau County Ct 2019], citing CPL 722.23 [2] [c] [ii]). As germane here, the statutory definition of firearm includes "any pistol or revolver" (Penal Law § 265.00), and a deadly weapon is defined 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]).

Whether a flare gun constitutes a deadly weapon for the purposes of CPL 722.23 (2) (c) (ii) appears to be a question of first impression in the State of New York. There is a dearth of case law addressing whether a flare gun constitutes a deadly weapon under the Penal Law. One of the few cases addressing the classification of a flare gun under New York law is People ex rel. Altomari v Evergood (74 NYS2d 12, 15 [NY City Magistrates' Ct, Manhattan 1947]). The People encourage this [*3]court to extend the holding of that case to the present case.

In People ex rel. Altomari v Evergood, a type of flare signaling pistol known as a Very pistol was used by a robber to fire shotgun shells, killing a police officer. The owner of the Very pistol was thereafter charged with unlawful possession of a weapon without a license in violation of the Penal Law. In Altomari, the defendant moved to dismiss the case; however, the court found that there was prima facie evidence that the Penal Law had been violated by the defendant. The court determined that although the Very pistol was not originally designed to be a weapon, it was adapted by the burglar to fire bullets, and{**88 Misc 3d at 289} used to kill a police officer. (Id.) Based on these facts, the court found that the People established a prima facie case to show a Very pistol required a permit within the definition of the Penal Law. (Id.)

The People further attempt to analogize a flare gun to a BB gun, which has been found to be a deadly weapon within the meaning of the Penal Law (see People v A.T., 63 Misc 3d 336, 338 [Fam Ct, Erie County 2019]; cf. People v Akinlawon, 158 AD3d 1245 [4th Dept 2018]; People v Perez, 93 AD3d 1032, 1035 [3d Dept 2012] [noting that "(a) police investigator testified that the BB gun was capable of causing serious physical injury or death if shot at close range at a person's eye or temple"]). The People appear to suggest that, like a BB gun, a flare gun is not typically likely to cause death or serious physical injury; however, under certain circumstances, it is readily capable of causing such harm.

Counsel for the AO urges the court to disregard the decision in People ex rel. Altomari v Evergood, decided nearly 80 years ago, under a vastly different iteration of the Penal Law. Counsel for the AO further argues that this court should consider, as persuasive authority, case law from Hawaii, finding that a flare gun is not a firearm or dangerous weapon. The Supreme Court of Hawaii, in State v Rackle, found that a flare gun is not a weapon under Hawaii statute, noting that "[a]n ordinary flare gun is not designed or intended to be used as a weapon," rather it is "an emergency signalling device employed predominantly aboard boats to expedite rescue efforts" and recommended to be carried upon ships by the United States Coast Guard (State v Rackle, 55 Haw 531, 537, 523 P2d 299, 303 [1974]).

In reviewing the case law provided, this court first notes that the decision in People ex rel. Altomari v Evergood involves a very different set of facts, as the flare gun was used to fire shotgun shells. Here, there is no evidence that the flare gun at issue was capable of firing any other type of projectile or live ammunition. Rather, the flare gun at issue here was loaded with a signal flare, the intended projectile, and fired as designed. Further, a review of out-of-state authority more broadly reveals disagreement regarding the treatment of flare guns under the respective statutory schemes of different states (see State v Rackle, 55 Haw at 537, 523 P2d at 303; but see Emmons v State, 546 So 2d 69, 71 [Fla Dist Ct App, 2d Dist 1989] [finding that a flare gun was a firearm "because it is designed {**88 Misc 3d at 290}to and was actually capable of expelling a projectile by means of an explosive device"]; United States v Coston, 469 F2d 1153, 1153 [4th Cir 1972]; compare Commonwealth v Sampson, 383 Mass 750, 755-758, 422 NE2d 450, 453 [1981] [finding that a flare gun was not a firearm nor a weapon by design, but noting that "objects that are not weapons by design . . . could be characterized as a weapon if it were so used"]).

In the absence of any clear guidance or binding authority, this court must rely upon the plain language of the Penal Law. When interpreting a statute, the primary goal is to give effect to the intention of the legislature, and where the statute's language is clear and unambiguous, this court "must give effect to its plain meaning" (Matter of Alvarez v Annucci, 38 NY3d 974, 983 [2022]).

A deadly weapon is defined in Penal Law § 10.00 (12) as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles." Furthermore, the evidence presented by the People establishes that the device was loaded with and did in fact fire a flare. Therefore, a flare gun constitutes a weapon (see People v Rodriguez, 32 AD3d 1203, 1205 [4th Dept 2006]).[*4]

The only remaining question is whether the projectile it was loaded with constituted "a shot, readily capable of producing death or other serious physical injury" (Penal Law § 10.00 [12]).

On the 4th of July the AO fired a flare gun in the streets of Albany, New York, causing a residential building and an adjacent business to go up in flames. There is dispute as to whether the AO was attempting to hit someone with the flare or whether he was firing a warning shot over their heads. Regardless of which account is true, at best, the AO recklessly fired a flare in a densely populated residential urban area. It was sheer luck that both buildings were unoccupied at the time of the fire. Had either building been occupied, the results could easily have been serious injury or death. Therefore, there seems little question that an incendiary projectile, fired in that environment, constituted "a shot, readily capable of producing death or other serious physical injury" (Penal Law § 10.00 [12]).

It is true that the ordinary and intended purpose of a flare gun is to function as a signaling device, not a weapon. However, while the court appreciates the argument made by the Supreme Court of Hawaii, and the Supreme Judicial Court of Massachusetts,{**88 Misc 3d at 291} essentially, that a weapon should, or should not, be classified as a weapon based solely upon its design and common use, this court cannot ignore the fact that this flare gun served no legitimate purpose in the streets of Albany, New York on July 4, 2025. Therefore, for the purposes of CPL 722.23, this court finds that the flare gun, in the manner and environment used, falls squarely within the statutory definition of a deadly weapon.

The People have pleaded sufficient relevant facts, and provided sufficient evidence, to demonstrate that it was more likely than not that the AO unlawfully displayed a deadly weapon in furtherance of a criminal offense (see CPL 722.23 [2] [c] [ii]).

Therefore, it is hereby ordered that this matter shall remain in Youth Part and shall not be transferred to Family Court.