Opinion
No. FYC-70120-23-001
04-25-2023
In the Matter of a Youth Part Proceeding, K.M., Adolescent Offender.
Kristopher J. Berlingiei Assistant District Attorney Sullivan County District Attorney's Office Lisa Swift, Esq. Attorney for Adolescent Offender
Unpublished Opinion
Kristopher J. Berlingiei Assistant District Attorney Sullivan County District Attorney's Office
Lisa Swift, Esq. Attorney for Adolescent Offender
E. Danielle Jose-Decker, J.
The People have moved for an order preventing removal of the above captioned criminal action against Adolescent Offender ("AO") K.M. to the Family Court pursuant to CPL §722.23(2)(a), by way of a statutorily required accusatory instrument review hearing. For the reasons that follow, the People's motion to prevent the removal of the instant criminal action against K.M. to Family Court is denied. In support of same, the Court makes the following findings of fact and conclusions of law.
Findings of Fact and Conclusions of Law
On April 18, 2023, the AO was charged with Assault in the Second Degree, a Class D Violent Felony in violation of Section 120.05(2) of the Penal Law along with Criminal Possession of a Weapon in the Fourth Degree, a Class A Misdemeanor in violation of Section 265.01(2) of the Penal Law based upon conduct that is alleged to have taken place on April 18, 2023. The AO was arraigned with assigned counsel, Lisa A. Swift, Esq., in the Youth Part of Sullivan County Court on April 18, 2023. The AO's attorney entered a not guilty plea. The AO was advised of her rights, including the right to a preliminary hearing. The AO reserved her right to a preliminary hearing. The Court scheduled the matter for a statutorily required accusatory instrument review hearing on April 24, 2023.
After considering the factors enumerated in CPL §510.10(1), due to the seriousness of the charges, the Court concluded that the AO posed an individualized risk of flight to avoid criminal prosecution, and, although the Detention Risk Assessment Instrument ("DRAI") registered a zero risk score, the Court imposed non-monetary conditions with respect to the AO's release status, specifically supervision by the Alternatives to Incarceration Program ("ATI") administered by the Sullivan County Probation Department. Written conditions of release to ATI were also provided to the AO. A Temporary Order of Protection was entered in favor of the alleged victim.
On April 24, 2023, the matter proceeded to a hearing based upon the People's request to prevent removal of the instant criminal action to Family Court. The hearing consisted of accusatory instrument review and arguments of counsel, pursuant to CPL §722.23(2)(a). The prosecutor argued that the AO displayed a deadly weapon, namely a dagger. The prosecution argued that the plain meaning of "dagger" is a knife (apparently any knife), according to the Merriam-Webster Dictionary. The prosecutor also argued that the AO caused significant physical injury to the alleged victim. The accusatory instruments clarify that the knife was, in fact, a box cutter.
The Court also reviewed information provided by the prosecution regarding the alleged injuries, noting that they consist of two superficial lacerations to the victim's face. The first laceration appears to be ¾ of an inch in length over the left nostril. The second laceration appears to be 3 ½ inches long, spanning from the left jaw joint to where the jaw reaches the chin. The Court also reviewed the Garnet Health Emergency Room discharge paperwork (printed on April 18, 2023 at 3:35 p.m.) which was filed with the accusatory instruments, and notes that the victim was treated and released on April 18, 2023 and given instructions on how to care for her "nonsutured lacerations." There are no supporting depositions in the Court's file and no mention, hearsay or otherwise, of the victim experiencing any pain, substantial or otherwise.
Defense counsel argued that the box cutter is not a dagger, and, therefore, it does not qualify as a deadly weapon pursuant to the statute. The Defense further argued that the superficial wounds do not constitute "significant physical injury" under the statute, as they required no treatment, whatsoever - "not a stitch, not a butterfly, nothing."
CPL §722.23 - Removal of Adolescent Offenders to Family Court
CPL §722.23 addresses removal of Youth Part criminal charges against adolescent offenders to the Family Court for violent and non-violent felonies. For the most part, the Court must remove the case to the Family Court unless the prosecutor can demonstrate a basis for not doing so. With respect to non-violent felonies other than class A felonies, there is a presumption of removal to Family Court which can be overcome only by a showing of extraordinary circumstances on motion of the prosecutor within thirty days of arraignment. CPL §722.23(1).
However, in an action involving, inter alia, an allegation of a violent felony (as defined in section 70.02 of the penal law) the provisions of CPL §722.23(1) do not immediately or automatically apply. The Court must first make its removal determination under CPL §722.23(2), the section addressing violent felonies. Pursuant to CPL §722.23(2), "upon the arraignment of a defendant charged with a crime committed when he or she was 16 or... 17 years of age on a violent felony defined in section 70.02 of the penal law... 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."
Under paragraph (c) of CPL §722.23(2), the Court is required to order the action to proceed in accordance with CPL §722.23(1) (removal unless extraordinary circumstances found), unless, after reviewing the papers and hearing from the parties, the court determines in writing that the District Attorney proved by a preponderance of evidence one or more of the following: "(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 conduct or sexual contact as defined in section 130.00 of the penal law." If the Court makes such a finding, the action will not be removed to the Family Court, the action is ineligible for treatment under CPL §722.23(1) and the case will remain in Youth Part for all future proceedings.
This court has reviewed the Felony and Misdemeanor complaints, records provided regarding the alleged victim's injuries and medical treatment and photographs of the injuries. The Court has also considered the arguments of counsel in this case. Based upon the Court's review, this Court finds that the people have not established by a preponderance of evidence that the AO" displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense" or that the AO" caused significant physical injury to a person other than a participant in the offense."
In this case, it is alleged in the factual portion of the Misdemeanor and Felony Complaints that the AO" slash[ed] A.N.'s (sic.) face with a knife, a box cutter, thus causing injury to A.N.," and" slash[ed] A.N.'s (sic.) face with a knife, a box cutter, thus causing laceration to her right cheek and nose."
Is a Box Cutter a Deadly Weapon?
"Deadly weapon" means "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles" Penal Law § 10.00(12).
The prosecutor has characterized the box cutter as a knife and argued that it qualifies as a dagger because a dagger is simply a knife, according to the Merriam-Webster Dictionary. The term "dagger" is not defined in the Penal Law.
As such, the Court is required to "ascertain the legislative intent and construe the pertinent statutes to effectuate that intent." People v. E.M., 133 N.Y.S.3d 783 (Nassau Co. Ct. 2020), citing, People v. Roberts, 31 N.Y.3d 406 (2018).
Absent a statutory definition, dictionary definitions serve as "useful guideposts" to determine the word's "ordinary" and "commonly understood meaning. This follows from the principle that, generally, unless a contrary intent is clear, lawmakers employ 'words as they are commonly or ordinarily employed.'". People v. Aleynikov, 31 N.Y.3d 383, 397 (2018).
The word "dagger" has been defined as "a sharp pointed knife for stabbing." (Merriam-Webster Online Dictionary). Cambridge Dictionary defines "dagger" as "a short, pointed knife that is sharp on both sides, used especially in the past as a weapon." The Oxford English Dictionary defines "dagger" as "a sharp pointed knife that is used as a weapon".
The words "box cutter" have been defined as "a small cutting tool that is designed for opening cardboard boxes and typically consists of a retractable razor blade in a thin metal or plastic sheath." (Merriam-Webster Online Dictionary). Cambridge Dictionary defines "box cutter" as "a sharp knife with a short blade that can be replaced or put inside the handle if not being used." The Oxford English Dictionary defines "box cutter" as "A small utility knife with a very fine and sharp replaceable blade, designed to open cardboard boxes."
The deadly weapon definition is generally limited to "a few specific lethal instruments of a kind that ordinarily are manufactured or designed as 'weapons' and have virtually no other purpose." Denzer and McQuillan, Practice Commentary to Penal Law § 10.00, McKinney's Penal Law (1967). (Emphasis added).
Based upon the ordinary and commonly understood meanings of "dagger" and "box cutter", this Court finds that a box cutter does not qualify as a dagger, due to its design and regular intended purpose. Therefore, the box cutter does not qualify as a deadly weapon and, as such, the Prosecution has not proven 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".
Do Superficial Lacerations Constitute Significant Physical Injury?
There is no statutory definition of "significant physical injury"; however, other Courts have determined that the definition of the phrase "fall[s] somewhere in between" a "physical injury" and a "serious physical injury," both of which are phrases defined elsewhere in the Penal Law. People v. V.A.M., 154 N.Y.S.3d 375, 378 (NY Co. Ct. 2021).
"Legislators debating the RTA bill indicated that they expected "aggravating factors" to accompany 'significant physical injury,' including 'bone fractures, injuries requiring surgery and... injuries that result in disfigurement.' (NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 [Assembly tr] at 26.) '[S]ignificant physical injury' was elsewhere summarized as being 'something more serious than a bruise, but less serious than a disfigurement.' (Assembly tr at 27.) The legislators further advised that in order to qualify as 'significant physical injury,' the injury 'must have features... and results that go[ ] significantly beyond those of physical injury.' (Assembly tr at 49)". People v. V.A.M., 154 N.Y.S.3d 375, 379 (NY Co. Ct. 2021).
While the Court finds the circumstances surrounding the AO's alleged assault on the victim to be concerning, the Court's inquiry is limited to the injuries sustained by the victim and, in this case, the court finds that the People have failed to establish by a preponderance of the evidence that the AO caused a "significant physical injury" to the victim. The victim in this case is reported to have needed no sutures to close her superficial lacerations. Furthermore, the People proffered no evidence that the victim required extended treatment or hospitalization beyond the date of the incident, nor do they allege that the victim sustained "substantial pain," an element of "physical injury".
Accordingly, the People having failed to prove, by a preponderance of the evidence, a clear basis for retaining the instant matter in the Youth Part pursuant to CPL § 722.23(2). The matter will proceed pursuant to CPL § 722.23(1), which permits the People to file a motion to prevent removal within thirty days of the arraignment based on extraordinary circumstances. The arraignment of this case having taken place on April 18, 2023, the matter will be removed to Family Court on May 18, 2023, absent a motion by the People before that date.
WHEREFORE, it is hereby
ORDERED that the People's motion to prevent removal of the instant criminal action against K.M. to the Family Court in accordance with CPL §722.23(2) is denied; and it is further
ORDERED that this action shall proceed in accordance with CPL §722.23(1); and it is further
ORDERED that, should the prosecutor decide to file a motion regarding extraordinary circumstances in accordance with CPL §722.23(1), same must be filed and served before May 18, 2023.
This shall constitute the Decision and Order of this Court. All papers, including the original copy of this Decision and Order, are being forwarded to the Office of the Sullivan County Court Clerk for filing.