Opinion
X-0000-00
07-09-2020
The PEOPLE of the State of New York, Petitioner, v. K.D.H., A Person Alleged to be a Juvenile Delinquent, Respondent.
Bradley Smith, Esq, Deputy County Attorney. Michael Kaszubski, Esq., represented the Respondent, K.D.H.
Bradley Smith, Esq, Deputy County Attorney. Michael Kaszubski, Esq., represented the Respondent, K.D.H.
The following papers were read on this Motion:
Respondent's Notice of Motion 1
Presentment Agency's Affirmation in Opposition to Respondent's Motion 2
Respondent's Reply Affirmation 3
The respondent in this juvenile delinquency proceeding has filed a motion for dismissal of the accusatory instrument filed against him. The presentment agency filed opposition to the respondent's Motion to Dismiss and the respondent filed reply papers in further support thereof. The respondent's Motion to Dismiss is determined as follows:
The respondent, K.D.H. (D.O.B. 0/00/0000) ("respondent"), is alleged to have committed an act which, if committed by an adult, would have constituted the crime of robbery in the second degree [ Penal Law § 160.10(01) ]. The juvenile delinquency petition arises from the respondent's alleged role/participation in an incident which occurred on or about May 20, 2020, at about 12:10 PM in V.S., Nassau County, New York.
The respondent was arrested on May 20, 2020 and was initially charged as an Adolescent Offender in the Youth Part of the County Court in Nassau County. On May 21, 2020, the Court issued an Order of Removal pursuant to Article 725 of the Criminal Procedure Law, which removed the respondent's case from the Youth Part to the Family Court. He first appeared in the Family Court on May 26, 2020.
The respondent's counsel argues that the juvenile delinquency petition should be dismissed because it is defective and fails to make out the elements of the crime of robbery in the second degree. (Affirmation of Michael Kaszubski , Esq. , dated June 7, 2020 ["Kaszubski Aff. in Support of Motion to Dismiss"], p. 1).
Under FCA § 311.1(7), the petition in this case consists of the Court's May 21, 2020 removal order, together with the Felony Complaint, supporting deposition and the County Court proceeding minutes transferred to the Family Court.
The supporting deposition alleges that on the subject date and at the incident location, the respondent's friend pushed the complainant and removed $340.00 from his shirt pocket. The respondent's counsel argues that the "sole allegation" against the respondent is that he stood by as this occurred and "encouraged" his friend to get the money from the complainant. (Kaszubski Aff. in Support of Motion to Dismiss , p. 2). Counsel for the respondent contends that the deponent's failure to specify what the respondent said or how it was said and/or to specify how the respondent participated in the alleged robbery, renders the accusatory instrument defective and warrants dismissal. (Kaszbuski Aff. in Support of Motion to Dismiss , p. 2).
The Presentment Agency argues that the juvenile delinquency petition should not be dismissed because it satisfies the sufficiency standard set forth in the Family Court Act. (Affirmation of Bradley N. Smith , Esq. , in Opposition to Respondent's Motion , dated June 29, 2020 ["Smith Aff. in Opp. to Motion to Dismiss"], ¶¶ 6-8).
The respondent's counsel argues in reply that the supporting deposition is insufficient to establish that the respondent aided his co-respondent. (Reply Affirmation of Michael Kaszubski , Esq. , dated June 30, 2020 ["Kaszubski Reply Aff."], p. 1). The respondent's counsel further contends that the complainant alleged that the respondent "encouraged" the alleged robbery, but the respondent's "mere presence" at the car repair shop cannot be deemed encouragement. (Kaszubski Reply Aff. , p. 2). He further contends that there is "no sufficiency in the complaint and petition that [respondent] aided the alleged crime to be committed", that the matter is facially insufficient, and that it must be dismissed. (Kaszubski Reply Aff. , p. 2).
"For [a juvenile delinquency] petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent's commission thereof." ( Matter of Dennis P.-A , 170 AD3d 727, 729 [2d Dept. 2019] ; FCA § 311.2 ). "Such allegations must be set forth in the petition or the supporting depositions". ( Matter of Dennis P.-A , supra , 170 AD3d at 729 ). "The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subjection matter jurisdiction to entertain the petition or count". ( Matter of Dennis P.-A , supra , 170 AD3d at 729 ).
However, "the purpose of a [juvenile delinquency] petition is not to prove a case against the accused but simply to advise him of the crime with which he is charged." ( Matter of Dirhim A. , 178 AD2d 339, 340-41 [1st Dept. 1991] ). Furthermore, "[a] highly detailed, factual description of the purported criminal transaction is not mandated." ( Matter of James J. , 160 AD2d 699, 700 [2d Dept. 1990], affd , 76 NY2d 883 [1990] ). A "petition will not fail because otherwise sufficient statements are made in a conclusory manner". ( Matter of Dirhim A. , supra , 178 AD2d at 341 ).
The respondent in this case is charged with robbery in the second degree. To prove that an individual is guilty of the same the Presentment Agency must establish that he forcibly stole property and that he was aided by another person actually present . ( Penal Law § 160.10[01] ). An individual who aids the commission of such criminal conduct bears criminal liability for the same offense. ( People v. Suarez , 162 AD2d 302 [1st Dept. 1990] ; see also In re Kenyetta F. , 49 AD3d 540, 541 [2d Dept. 2008] ).
"A person commits ‘forcible stealing’ when, during the commission of a larceny, such individual 'uses or threatens the immediate use of physical force upon another person for the purpose of preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking". (Penal Law § 160.00[1] ; People v. Gordon , 23 NY3d 643 [2014] ).
A person is "aided by another person actually present" when the other person "poses an additional risk of violence to a robbery victim by being sufficiently close and ready, willing and able to render aid". (People v. Elliot , 57 AD3d 1095, 1096 [3d Dept. 2008] ; People v. Hedgeman , 70 NY2d 533 [1987] ).
--------
The juvenile delinquency petition alleges that on or about May 20, 2020, at about 12:10 PM, in V.S., Nassau County, New York, the respondent and his co-respondent forcibly stole property of another while acting in concert. It is alleged that they engaged in a verbal dispute with the complainant over the co-respondent's vehicle, which was being repaired at the complainant's autobody shop. It is further alleged that the co-respondent attempted to enter his vehicle, but was confronted by the complainant, that the co-respondent then pushed the complainant and forcibly stole $340.00 from the complainant's upper left breast pocket as this respondent stood and watched, while verbally encouraging the co-respondent to take the complainant's money. The two co-respondents then allegedly fled the scene.
The complainant's supporting deposition alleges that the co-respondent owed $1,500.00 for repairs to his vehicle, and that an argument between the complainant and the co-respondent ensued after the co-respondent's credit card was declined. The deponent further alleges that the argument "escalated" with the co-respondent "pushing and grabbing at $500.00 USC in [the complainant's] shirt pocket." Deponent further alleges that this respondent" stood by and verbally encouraged" his co-respondent" to get the money from" the complainant "by pushing" the complainant. The deponent further alleges that the co-respondent forcibly removed $340.00 from the complainant's shirt pocket while the deponent fought to hold on to the money, and that after the money was forcibly removed, both co-respondents fled the scene on foot.
Based on its review of the juvenile delinquency petition in this case, the Court finds that it satisfies the sufficiency requirements set forth in FCA § 311.2, and therefore declines to dismiss the petition. The petition "substantially conforms to the requirements prescribed" in FCA § 311.1 ; "[t]he allegations of the factual part of the petition, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the respondent committed the crime or crimes charged"; and "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of" the crime of robbery in the second degree and the respondent's commission thereof. ( FCA § 311.2 ).
The Court further notes that even to the extent that the allegation the respondent "verbally encouraged" his co-respondent to take the complainant's money "by pushing" him may have been "stated in a succinct fashion", the Court finds that it is "nevertheless a statement of fact" sufficient to satisfy the statutory requirements. ( Matter of James J. , supra , 160 AD2d at 700-701 ; Matter of Lee M. , 126 AD2d 645, 646 [2d Dept. 1987] ).
Moreover, the verbal encouragement allegation is not the sole allegation against the respondent; it is also alleged that he was physically present and observed the incident and that he and his co-respondent immediately fled after the co-respondent removed the complainant's money. Considering all of these allegations together, the Court finds that the non-hearsay allegations establish, if true, every element of the crime of robbery in the second degree and the respondent's commission thereof. (See People v. Elliot , 57 AD3d 1095, 1097 [3d Dept. 2008] [affirming conviction of robbery in the second degree after finding that the evidence "amply" demonstrated the defendant assisted co-defendant in committing robbery where, inter alia , he verbally encouraged the co-defendant to attack victim]; see also , In re Kenyetta F. , 49 AD3d 540, 541 [2d Dept. 2008] [finding that the respondent's conduct "before, during and after" robbery established that she "acted in concert to commit the charged acts"]; People v. Suarez , 162 AD2d 302 [1st Dept. 1990] ).
Based on the foregoing, the respondent's motion to dismiss the accusatory instrument in this matter is DENIED in its entirety.
Accordingly, it is hereby:
ORDERED that the respondent's Motion to Dismiss is denied in its entirety; and it is further ORDERED that all other requests for relief not addressed herein are deemed denied.
This constitutes the Decision and Order of the Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.