County Court, Albany County

Decided on April 21, 2026

FYC No. 70601-26/001

Ricja Rice, J.

[*1]

The Adolescent Offender (AO), born on XX/XX/ 2008, was seventeen (17) years of age at the time of his arrest. The AO was charged with one count of Assault in the First Degree, in violation of Penal Law § 120.10 (1); one count of Reckless Endangerment in the Second Degree, in violation of Penal Law § 120.20; one count of Assault in the Second Degree, in violation of Penal Law § 120.05 (2); one count of Criminal Possession of a Weapon in the Fourth Degree, in violation of Penal Law § 265.01; and one count of Menacing in the Second Degree, in violation of Penal Law § 120.14.

The AO was arraigned before the Hon. Ricja Rice on March 27, 2026. The People requested a six-day review pursuant to CPL § 722.23 (2) (a) and the six-day review commenced before the Hon. Ricja Rice on April 2, 2026. Counsel for the AO requested leave to file written summations. This request was granted, and both the People and counsel for the AO were given until April 9, 2026 to file written submissions.^FN1

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 an offense.

"To establish a fact by a preponderance of the evidence means to prove the fact is more likely than not to have occurred" (People v. V.A.M., 73 Misc 3d 293, 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) [Sup Ct, Kings County 2019]).

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

Exhibit 1: CD — Interview of AO

Exhibit 2: Surveillance Video

Exhibit 3: Still Shots from Surveillance Video

Exhibit 4: Witness Statement

Exhibit 5: Police Interdepartmental Memorandum

No testimony was taken, and the parties agreed to rely upon oral argument and written [*2]submissions. The Court has reviewed the accusatory, exhibits, and written submissions.

FACTUAL ALLEGATIONS

It is alleged in the Felony Complaint that on February 28, 2026, at approximately 8:23 p.m., in the City of Cohoes, County of Albany, that the AO possessed a deadly weapon, namely, a loaded flare gun, and that the AO fired said flare gun at the victim.

The People provided a witness statement from the victim describing a series of incidents where several youths, including the AO, came into a restaurant and started throwing snowballs inside which hit the chef. The police were called, but the youths fled before they arrived. The youths later returned, at which point the victim and another employee went outside to confront the youths. While outside, the victim alleges one youth "pointed something at us, and I heard a loud bang" (see Exhibit 5).

The People submitted surveillance video footage of the street where the incident is alleged to have occurred. A group of youths can be seen approaching a restaurant, opening the door, and then throwing snowballs inside before running away. The youths later return and again threw snowballs at the window. After this occurred several times, two men came outside and ran at the youths. At this point, around 8:24 p.m., one of the youths, dressed in dark clothing, fires a flare at the men before running away. The flare did not hit either of the men and appears to have landed in the street before burning out (see Exhibit 3). The Cohoes Police later identified the AO as the individual in the surveillance footage with the flare gun (see Exhibits 1 and 4).

CONCLUSIONS OF LAW

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 (People v Guerrero, 235 AD3d 1276, 1281 [4th Dept 2025], affd People v Guerrero, — NY3d —, —, 2026 NY Slip Op 00826 [2026]). 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 [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]).

The People argue that this Court's decision in People v. M.K. (88 Misc 3d 285, 291 [Albany County Ct 2025]), and the decision of the Appellate Division, Third Department, in People v Flanigan (242 AD3d 1374 [3d Dept 2025]), clearly establish that a flare gun constitutes a deadly weapon. Conversely, counsel for the AO argues that those cases are factually distinguishable, that the flare gun did not actually result in any damage or injury, and that the People's classification of a flare gun as a deadly weapon is inconsistent with the intent of the Legislature.

It is clear that a flare gun is a weapon (see People v Rodriguez, 32 AD3d 1203, 1205 [4th Dept 2006]), which was capable of discharging, and did in fact discharge, a shot (see Penal Law § 10.00 [12]). Therefore, the only element in question is whether the loaded shot discharged from the flare gun, was "readily capable of producing death or other serious physical injury" (Penal Law § 10.00 [12]). While the Court agrees that the facts of this case differ greatly from both People v M.K. and People v Flanigan, as there was no tangible harm caused, the critical question is not whether a flare gun did in fact cause serious physical injury, but whether it was readily capable of producing death or other serious physical injury.

When this Court decided the matter of People v M.K., the Court was faced with a question of first impression in the State of New York, and carefully limited its decision to the facts and circumstances before it, specifically the "manner and environment" in which the flare [*3]gun was used (People v M.K., 88 Misc 3d at 291). There, this Court ruled that a flare gun was readily capable of producing serious physical injury because it was fired in a residential area, resulting in a fire which quickly consumed two buildings. However, a question not fully presented to the Court, was whether a flare gun could cause serious injury if the shot directly struck a person. This question was answered by the Appellate Division, Third Judicial Department in People v Flanigan (242 AD3d 1374 [3d Dept 2025]), a matter decided several months after this Court's decision in People v. M.K..

In People v Flanigan, the Appellate Division upheld a jury verdict convicting the defendant of, among other things, assault in the second degree, finding that the verdict was not against the weight of the evidence (see 242 AD3d 1374, 1376 [3d Dept 2025]). There, the People were required to demonstrate that the accused "recklessly cause[d] serious physical injury to another person by means of a deadly weapon or a dangerous instrument", and the facts established that the shot fired by the flare gun caused the victim's left arm to catch on fire, causing "serious physical injury, specifically serious disfigurement" as well as "protracted impairment" of physical condition, resulting in pain and physical limitations even six months after the incident (Id. at 1375-1376). Considering the applicable standard of preponderance of the evidence, the Court finds it more likely than not that the specific flare gun at issue was also readily capable of causing a serious physical injury.

While counsel for the AO argues that this interpretation does not comport with the legislative intent underlying the raise the age legislation, the Court of Appeals has made clear that the plain language of the statute is the clearest indicator of legislative intent (see Matter of T-Mobile Northeast, LLC v DeBellis, 32 NY3d 594, 607 [2018]). This Court recognizes that the Legislature intended only to disqualify the most serious offenses from removal to Family Court. However, this Court does consider the rising use of flare guns, especially in this community, to be particularly serious in light of the extreme damage that they can, and have inflicted, when fired in a reckless or malicious manner (see e.g. People v Flanigan (242 AD3d at 1375-1376; People v M.K., 88 Misc 3d at 287).^FN2

The Court further finds that the flare gun was utilized in furtherance of the charged offense (see CPL § 722.23 [2] [c] [ii]), as the surveillance video demonstrates that the flare gun was fired at the victims. As such, the People have pled 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.

This constitutes the decision and order of the Court.

Dated: April 21, 2026

Hon. Ricja Rice