Opinion
FYC-70228-19
04-04-2019
The PEOPLE of the State of New York, Plaintiff, v. D.G., As an Adolescent Offender, Defendant.
The Defendant is charged as an Adolescent Offender ("AO") on a Felony Youth Complaint with the following Felony charges; Robbery in the First Degree [PL § 160.15(4) ], a class B Felony, Robbery in the Second Degree [PL§ 160.10(2)(b) ], a class C Felony; Attempted Robbery in the Second Degree [PL§ 110/160.10(3) ], a class D Felony; Robbery in the Third Degree [PL§ 160.05], also a class D Felony; and Grand Larceny in the Forth Degree [PL§ 155.30(4) ], a class E Felony. The AO is also charged with the following Misdemeanor charges. Menacing in the Second Degree [PL § 120.14(1); Petit Larceny [PL§ 155.25]; Unauthorized Use of a Vehicle in the Third Degree [PL§ 165.05(1) ]; Criminal Possession of Stolen Property in the Fifth Degree [PL§ 165.40]; and, Criminal Possession of a Weapon in the Fourth Degree [PL § 265.01(2) ], all class A Misdemeanors. Menacing in the Third Degree [PL § 120.15], a class B Misdemeanor. He is also charged with Harassment in the Second Degree [PL § 240.26(1) ], a violation.
The Defendant is also charged under Felony Youth Complaint FYC-70229-19, with Grand Larceny in the Third Degree [PL§ 155.35], a class D non-violent Felony, and related charges. Although the charges under this FYC docket are presumptively removable under the newly established Raise the Age Legislation, the People argue that these charges stem from the underlying acts perpetrated by the AO under FYC-70228-19, and it was inadvertently charged under two separate dockets instead of one. The People further argue, that when presented to the Grand Jury, they plan on consolidating both FYC dockets under one Indictment, should the Grand Jury vote a True Bill.
The AO was arrested on March 24, 2019, and was arraigned in the Youth Part on March 25, 2019, pursuant to CPL § 722.21(1) . At the arraignment, the People stated their intention not to consent to remove the matter to Family Court due to the serious nature of the charges and the allegations that the AO pointed a firearm at the complainant. Notices were served and, after argument, bail was set. The matter was then adjourned to March 29, 2019, for a three-fold purpose: (1) for the Court to review to the accusatory instrument pursuant to CPL § 722.23(2)[a] ; (2) a Removal Hearing pursuant to CPL § 722.23(2)[b] ; and (3) for Grand Jury action pursuant to CPL § 180.80 .
FACTUAL ALLEGATIONS
The felony complaint alleges that on or about March 22, 2019, at approximately 8:26 p.m., while in the County of Kings, the Defendant did point a firearm at the Informant and took the Informant's car keys. The felony complaint further alleges that the Defendant did get inside of the informant's vehicle with the above-mentioned keys, remain in said vehicle briefly, exit said vehicle, and then fled the scene on foot. The felony complaint further alleges that the above actions caused the Informant to fear physical injury and to become alarmed and annoyed.
REVIEW of the ACCUSATORY INSTRUMENT/REMOVAL HEARING
On March 29, 2019, the Grand Jury voted a True Bill and indicted the AO under Indictment number 01958-2019. Since the AO is charged with having committed a violent felony as defined in section § 70.02 of the Penal Law , the Court held a Hearing for the purpose of determining whether the matter should be removed to Family Court pursuant to CPL § 722.23(2)[b] .
According to the People, on March 22, 2019, at approximately 8:30 p.m., the complainant was walking out of her car, a 2014 gray four-door Mercedes Benz. That the AO, standing one to two feet away from her, demanded her car keys and took out what she recognized to be a gun from the inside of his jacket (Removal Hearing Transcript, pg. 10, lines 16-25 & pg. 11, lines 2-6). They further state that when the complainant failed to comply with his demands, the AO took the keys from her hand, went into the vehicle for approximately 30 seconds, and ran away once 911 was called (Removal Hearing Transcript, pg. 11, lines 6-16). Thereafter, the complainant filed a police report and spoke with the detective assigned to the case. On March 23, 2019, the following day, at 12:45p.m., the complainant walked past her car noticing it was still there from the night before, however, 30 minutes later, noticed it was gone (Removal Hearing Transcript, pg. 11, lines 17-24). The complainant then made a new police report concerning her stolen vehicle.
On March 24, 2019, at approximately 8:45 a.m., a highway officer observed the AO driving the 2014 gray Mercedes Benz at an excessive speed. After stopping the vehicle and following up with investigatory questions, the officer placed the AO under arrest. The AO was later identified by the complainant via a double-blind photo array.
The People argue that because the AO is charged with a violent felony offense this matter can only be removed to Family Court with their consent. see , CPL § 722.23(2)[h] & [e] . The Defense argues, without any admission of guilt, that because the AO is charged under subsection 4 of PL § 160.15 , the element of "displaying what appears" to be a firearm, fails to meet the standard of "displayed a firearm", which the statue outlines, and what was contemplated by the NYS Legislature. PL § 160.15(4) states, in part, "a person is guilty of Robbery in the First Degree when he forcibly steals property and displays what appears to be a pistol, rifle, shotgun, machine gun or other firearm."
The People concede that the phrase, "displayed a firearm" is new and the language defining Robbery in the First and Second Degree, in part, uses the phrase, "display what appears to be a firearm". However, they acknowledge their obligation to prove whether the actual object that was displayed by the AO was an actual firearm and not what "appeared to be a firearm". (Removal Hearing Transcript, pg. 16, lines 19-25).
In response, the Defense argues, that the legislature was clear when they stated that a firearm, shotgun, rifle, or deadly weapon must be displayed, and not what appears to be afirearm as the People have charged.
The Court notes that neither side produced any witnesses, nor did the AO testify.
After hearing testimony from the People, and oral argument, the Court adjourned the matter for Decision.
CONCLUSIONS OF LAW
Pursuant to CPL § 722.23 , for Adolescent Offenders, all eligible matters shall be removed to Family Court after arraignment, unless; 1) the DA brings a motion to prevent transfer and the Court finds that offense should not be removed because of extraordinary circumstances, or, 2) the Youth is charged with a violent felony offense and the People prove, 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, shot gun, 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.
In the matter at hand, the People contend that the AO, did point a firearm at the Complainant and take her car keys. They further contend that she was able to observe the AO brandish a firearm because they were only one-two feet apart, and therefore, the display element in the statue is satisfied. The Defense argues that the statute is clear and unambiguous, in that display means that what was perceived, was an actual firearm or deadly weapon as defined in the Penal Law. And that the People, here, have failed to establish that fact.
The New York State Legislature, when contemplating raising the age of criminal culpability for 16 and 17-year-old youth, it was with the purpose and general idea that those young people, who are charged with a crime, may be treated in a more age appropriate manner. That the changes implemented would reflect the evidence that the current system had not been effective in deterring and preventing future crime, while maintaining a mechanism that youth, on a case by case basis, may be tried in adult criminal court when the circumstances warranted (see , https://www.nysenate.gov/legislation/bills/2017/s4121 ). The guidelines that the courts must follow are set forth in Article 722 of the Criminal Procedure Law . However, as is the case here, the Legislature and the text falls short of defining what would constitute displaying a firearm or deadly weapon. The Court notes that although other Youth Part jurisdictions in the State have already contemplated this issue, this remains a case of "first impression" here in Kings County.
Article 10 of the NYS Penal Law defines "deadly weapon", as it relates to the matter at hand, as any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged (PL § 10.00[12] ). Here, the NYS Legislature, when contemplating what elements needed to be proven when a youth is charged with a criminal offense, purposefully stated that the firearm, shotgun, rifle or deadly weapon, must be displayed in order to satisfy the criteria set forth in CPL § 722.24(2)[c][ii] .
The People and Defense point to recent Decisions rendered by the Youth Part Judges in courts of concurrent jurisdiction which have decided this very same issue. In the case of People v. L.M. , the AO is alleged to have discharged a loaded pistol, firing five shots, with one bullet landing in the complaining witness's abdomen. That court found that the People had met their burden that the AO displayed a firearm because the complaining witness sustained a gunshot wound to the abdomen. This case however is not analogues as to the one at bar, as the argument here proffered by the defense was one of proof of operability of the firearm, not, that no firearm was recovered. (People v. L.M. , 2019 NY Misc LEXIS 996, *7; 2019 NY Slip Op 50305 (U), **3 [County Court, Nassau County 2019] ).
In People v. A.T. , the AO displayed a black and silver BB gun, placed it to the complainant's head, and demanded all his money. The AO was arrested shortly thereafter and the officer recovered a black and silver BB gun where he observed the AO throw it. Here, the court held that the People had met their burden that the AO displayed a firearm because it was actually recovered (People v. A.T. , 2019 NY Misc LEXIS 996, *7; 2019 NY Slip Op 50305 (U), **3, [Family Court, Erie County 2019] ). Compare this with People v. G.C. , where the AO was charged with Murder in the Second Degree. In G.C. , the AO was accused of pointing a loaded handgun at the deceased and shooting the deceased in the torso, thereby causing his/her death. In support of their position that the AO displayed a handgun, the People submitted a copy of the face sheet of the autopsy report, which stated death was caused by a bullet wound ; advised the court of an eyewitness who actually observed the AO fire the gun at the decedent; and, also, recovered clothes of the AO which tested positive for gunshot primer residue. Here, although no gun was recovered, the court found that the People had met their burden that the AO displayed a firearm (People v. G.C. , 2019 NY Misc LEXIS 753*; 2019 NY Slip Op 29050 **, [County Court, Westchester County 2019] ).
Finally, there is People v. M.M. , a case which, is more analogues to the matter at hand. In, M.M , the AO was charged, under three separate Felony Youth Complaints, with one count each, of Robbery in the First Degree. Two of the FYC dockets charged PL § 160.15[3] , which states, in part, a person is guilty of robbery in the first degree, when he forcibly steals property he uses or threatens the immediate use of a dangerous instrument. The third docket charged PL § 160.15[4] , which states the person "displayed what appears to be a firearm. Again, this distinction is relevant. In M.M , the allegations as to one of the dockets is that the AO reached into his waistband while making a threat about shooting. As to the other, the AO placed his hand in his pocket "as if he had" a handgun. The People, as to those allegations, added no other additional information. However, in the third docket, the court thought it was a much closer call, as the Felony Youth Complaint actually alleged that the AO "displayed a black handgun", and threatened to shoot the complainant. Although the People referenced a videotaped statement of the AO in which he admitted to acting as if he had a gun, the complaining witnesses supporting deposition referenced that "what appeared to be a black handgun" was displayed when the AO threatened to shoot her. As no weapon was recovered, and no further description provided, the court found that the People had failed to meet their burden, by a preponderance of the evidence, that the AO in all three matters actually displayed a firearm. As a result, all three FYC dockets were removed to Family Court, barring a motion on behalf of the People within 30 days to retain (People v. M.M. , 2019 NY Misc LEXIS 1128*; 2019 NY Slip Op 29071**; 2019 WL 1303815, [County Court, Nassau County 2019] ).
In the Miriam/Webster dictionary, as a noun, the word, "display" means a setting or presentation of something in open view, such as a fireworks display; or, a clear sign or evidence; such as a display of courage. As a verb, it means; to disport, exhibit, expose, flash, flaunt, lay out, parade, produce, show, show off, sport, strut, and unveil. Clearly, the Legislature intended for a "display of a firearm or deadly weapon" to be something more than to merely "display what appears to be a firearm or deadly weapon" (emphasis added). This requires evidence that what is actually displayed, is in fact, a firearm or deadly weapon.
Here, the People's burden is measured by a preponderance of the evidence. In Pattern Jury Instructions, to establish a fact by a preponderance of the evidence means to prove that something is more likely true than not true. In other words, a preponderance of the evidence in the case means such evidence when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proven is more likely true than not true.
The Court may rely upon a review of the accusatory instrument, as well as any other relevant facts as presented by the parties when making its determination for removal purposes ( CPL § 722.24(2)[b] ). Also, as with most pretrial hearings, hearsay evidence is admissible to establish any material fact (see , People v. Mitchell , 124 AD3d 912, 2 NYS3d 207 [App Div2d, 2015] ). 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 ( CPL § 722.24(2)[d] ).
Here, although the People contend that the Complainant saw the AO take out and point at her what she perceived to be a black firearm, this statement, standing alone, is insufficient to satisfy the People's burden. The Court notes that the time of the alleged incident was 8:30 p.m. in the evening. There was no testimony as to the weather or lighting conditions in the area at the time of the incident. There was also no testimony as to the length of time the Complainant saw the alleged firearm. And other than the description that the firearm was black in color, no further description or testimony was set forth, evidencing that the object displayed, was in fact, an actual firearm. And although this Court is not holding that a firearm must be recovered, and or discharged in order for the People to meet their burden, here, the People chose to charge the AO under subsection 4 of PL § 160.15 , with "displaying what appears" to be a firearm. As a result, the People's mere recitation of the facts as outlined in the complaint, and bald assertions that the Complainant perceived what she believed to be a black colored firearm, at night, standing alone, falls woefully short of the Legislative intent.
Accordingly, based on the oral argument, and a review of the applicable statues and caselaw, this Court finds that the People have failed to meet their burden, by a preponderance of the evidence, that the AO displayed a firearm.
Therefore, Defense motion that the matter be removed to Family Court is granted, pursuant to CPL § 722.24(2) . However, the People are permitted to file a motion to prevent removal based on "extraordinary circumstances" within 30 days of the arraignment. ( CPL § 722.23(1)[d] ). Here, the AO was arraigned on March 25, 2019, consequently, barring any motion to prevent removal, the within matter will be removed to the Intake Part of the Kings County Family Court on April 25, 2019. If the People do not intend to prevent removal, this matter may be advanced, with consent of the Court, for an earlier removal date.
This constitutes the Decision and Order of the Court.