People of the Virgin Islands v. Nahjeeb Acevedo

2023 VI Super 12P

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS SX 2021 CR 201

Plaintiff,

vs

NAHJEEB ACEVEDO CITE AS 2023 VI SUPER l & Defendant

Appearances Jared W Burke, Esq Virgin Islands Department of Justice St Croix U S Virgin Islands For People ofthe Virgm Islands

H Hannibal O’Bryan, Esq' Office of the Territorial Public Defender St Croix, U S Virgin Islands For Nahjeeb Acevedo

MEMORANDUM OPINION AND ORDER WILLOCKS, Senior Sitting Judge T 1 THIS MATTER came before the Court on Defendant Nahjeeb Acevedo’s (hereinafter “Defendant ’) motion to dismiss filed on November I6, 202],‘ and the People of the Virgin Islands’ (hereinafter ‘ People”) motion to file their opposition to Defendant’s motion to dismiss out of time, filed on January 28, 2022 3

‘ Yolan Brow Ross Esq was the counsel of record at the time that the motion was filed but she has since left the Office of Territorial Public Defender and is currently sitting as a magistrate judge in the Superior Court of the Virgin Islands In response to Defendant s motion to dismiss the People filed an opposition, Defendant filed a reply thereafter and the People filed a supplement to their opposition to Defendant s motion to dismiss thereafter ‘ In response to the People’s motion to file document out of time, Defendant filed an opposition

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BACKGROI ND

‘11 2 On August 31 2021 the People filed an eleven count information against Defendant based on events that allegedly took place on or about July 30, 2021, in the vicinity of LaGrange Frederiksted, U S Virgin Islands, as set forth in the affidavit of Police Detective Teaclla Buckley (hereinafter “Detective Buckley ) dated August 31 2021 The information charged Defendant with the following counts

Count One NAHJEEB ACEVEDO acting with malice aforethought did willfully deliberately and with premeditated design attempt to kill Police Officer Almont King by shooting at him in violation of Title 14 V I C § 922(a)(1) 331(1) (ATTEMPTED MURDER IN THE FIRST DEGREE)

Count Two NAHJEEB ACEVEDO acting with malice aforethought did willfully deliberately and with premeditated design attempt to kill Police Officer Nick Felicien by shooting at him in violation of Title 14 V I C § 922(a)(1) 331(1) (ATTEMPTED MURDER IN THE FIRST DEGREE)

Count Three NAHJEEB ACEVEDO, when not authorized by law possessed a firearm during the commission or attempted commission of a crime of violence to wit attempted murder and or assault in the third degree in violation of Title 14 V l C § 2253(a)

(UNAUTHORIZED POSSESSION OF A FIREARM DURING THE COMMISSION OF A CRIME 0F VIOLENCE)

Count Four NAHJEEB ACEVEDO, when not authorized by law possessed a firearm within a vehicle during the commission or attempted commission of a crime of violence to wit a white four door Kia Sportage with no rear 1icense plate displayed in violation of Title 14 V l C § 2253(a) (UNAUTHORIZED POSSESSION OF A FIREARM WITHIN A VEHICLE)

Count Five NAHJEEB ACEVEDO, when not authorized by law possessed a firearm during the commission or attempted commission of a crime of violence and did so within 1000 feet of a housing community to wit Marley Homes in violation of Title 14 V I C § 2253(f) (UNAUTHORIZED POSSESSION OF A FIREARM WI 1000 FEET OF A HOUSING COMMUNITY)

Count Six NAHJEEB ACEVEDO did assault Police Officer Almont King and Police Officer Nick Felicien with a deadly weapon by shooting at them with a firearm in violation ofTitle 14 V I C § 297(a)(2) (ASSAULT IN THE THIRD DEGREE)

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Count Seven NAHJEEB ACEVEDO did assault Police Officer Almont King and Police Officer Nick Felicien fully uniformed police officers acting in their official capacity with a deadly weapon by shooting at them with a firearm in violation of Title 14 V I C § 297(b)

(ASSAULT IN THE THIRD DEGREE)

Count Eight NAHJEEB ACEVEDO when not in self defense or in the discharge of official duty did willfully discharge a firearm in a place where there was a person who may be in] ured thereby to wit on or about a public roadway with other people present in violation of Title 23 V I C § 479(a) (DISCHARGING OR AlMIING FIREARMS)

Count Nine NAHJEEB ACEVEDO when not entitled to possession of a vehicle without the consent of the owner and with intent to deprive him temporarily or otherwise of the vehicle or its possession used and/or drove a white four door Kia Sportage with no rear license plate displayed in violation of Title 14 V I C § 1382 (UNAUTHORIZED USE OF A VEHICLE)

Count Ten NAHJEEB ACEVEDO, under circumstances evidencing a depraved indifference to human life did recklessly engage in conduct in a public place which created a grave risk of death to others to wit discharging a firearm on or about a public roadway with other people present including uniformed police officers in violation of 14 V I C § 625(a) (RECKLESS ENDANGERMENT FIRST DEGREE)

Count Eleven NAHJEEB ACEVEDO, when not authorized by law did possess firearm ammunition in violation of Title 14 V I C § 2256 (a) (UNAUTHORIZED POSSESSION OF AMMUNITION)

A copy of Detective Buckley 5 affidavit was filed with the information In his affidavit, Detective Buckley essentially stated (i) On July 30, 2021, at approximately 8 16 p m while working in the capacity as a Police Detective for the Virgin Islands Police Department, the 91 l dispatcher “relay[ed] that the Special Operations officers transmitted via radio that they were attempting to conduct a traffic stop in La Grande vicinity of Frederikshaab Frederiksted, St Croix and that shots were fired and that there were two individuals trapped inside of the vehicle [and] requested via radio for ambulance and to have additional units travel to assist ’ (Buckley Aff 1] 2); (ii) Detective Buckley arrived at the scene to assist, observed the scene, and interviewed Officer 1 and Officer 2 Officer I and Officer 2 essentially stated to Detective Buckley that they recognized a stolen vehicle while on foot patrol, that they entered their police unit (with the words “POLICE

People ofthe V] l Acevedo [airfifialmifinzioépinion and Order 2023 VI SUPER Ji‘ Page 4 of 10 displayed on the unit) and attempted to conduct a traffic stop, that the operator of the stolen vehicle

led them on a high speed chase which resulted in the stolen vehicle running off the road and rolling onto its side, that shots were discharged at them from inside the stolen vehicle as they approached the stolen vehicle, that they returned fire, that Defendant fled from the stolen vehicle, that Defendant disobeyed their verbal commands to show his hands, that Defendant stated he was shot and subsequently crawled back to the stolen vehicle and was handcuffed, and that three other 17 year old minors from the vehicle were also handcuffed (Buckley Aff 1m 48 4H); (iii) At the hospital Detective Buckley mirandized Defendant and then interviewed Defendant Defendant essentially stated that he got a ride after leaving the Marley Homes basketball court, that he didn’t know the driver or the occupants of the vehicle, that he got in the front passenger seat and took a nap, that he saw the police blue lights when he opened his eyes, that the driver began to speed that the vehicle eventually flipped, that he heard shots being discharged from outside of the vehicle, that he broke the windshield to exit the vehicle, that he began running until he was shot, that no shots were discharged from inside the vehicle, that the only shots fired were from the police officers, that he does not own a firearm, and that he does not have a license to carry one (Buckley Aff ‘l 4]); and (iv) A check was made in the area and evidence was collected Subsequently, the stolen vehicle was processed and evidence was collected (Buckley Aff 1111 41, 4M ) 113 On September 4 2021 a scheduling order was entered in this matter According to the scheduling order oppositions are due fifieen (15) days afier the motions are filed (Sched Order) 114 On November I6 2021 Defendant filed a motion to dismiss On January 28, 2022, the People filed an opposition to Defendant s motion to dismiss and a motion to file document out of time In response Defendant filed a reply to the People’s opposition and an opposition to the

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People’s motion Thereafter the People filed a supplement to their opposition to Defendant s motion to dismiss DISCUSSION

1 The People’s Motion to File Document Out of Time fl5 On January 28, 2022, the People filed their opposition to Defendant’s motion to dismiss and contemporaneously filed a motion to file their opposition out of time in their motion, the People explained that the “[u]ndersigned counsel has been tasked with preparing the Government’s response but has been extremely busy meeting numerous court obligations ’4 (Motion 1 ) 1| 6 In his opposition, Defendant argued that the Court should deny the People 3 motion ‘ along with any other relief deemed necessary and appropriate (Opp 3) Defendant made the following assertions in support of his argument (i) ‘In this matter Attorney Simpson [sic] sole excuse for her beyond untimely filing of the People’s opposition However, in both criminal and civil forums, the Court has consistently held that a busy schedule does not rise to the level of excusable neglect ”5 (Id , at 2), and (ii) “The People 5 busy schedule assertion does not rise to the level of excusable neglect ’ (Id , at 3 )

A Standard of Review

1] 7 Rule 45(b)(1) of the Virgin Islands Rules of Criminal Procedure (hereinafter ‘ Rule 45(b)(l)’) provides that ‘ [w]hen an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made (A) before

" Amie M Simpson, Esq was the counsel for the People that filed the motion to file document out of time However Amie M Simpson, Esq has not filed a notice of appearance for the People in this matter Esther R Walters, Esq filed a notice of appearance for the People on October 19 2021 and no other notice of appearance has been filed 5 Defendantreferenced V1 R CRIM P 45(b)(l) HIIIS\ Whitecap 1m estment COIp 2016 VI LEXIS ll *6 (Sup Ct February 8 2016) Bwshmget v Legislature of(he Vugm Islands 2014 VI LEXIS 99 *7 *8 (Sup Ct November 10 2014) People i Rnem 54 V l 116 [24 (Sup Ct November 17 2010)

People ofthe V] v Ace udo fiégiimcdinzloépinion and Order 2023 VI SUPER | A Page 6 of 10 the originally prescribed or previously extended time expires or (B) afier the time expires if the

party failed to act because of excusable neglect V I R CRIM P 45(b)(1)

B Analysis

fl8 The Court must note at the outset that the People’s motion to file document out of time was perfunctory and made without supporting authority to wit, the People failed to cite any relevant authority showing that counsel’s ‘ extremely busy” schedule warrants an extension of deadline In fact, the People failed to even cite the relevant rule upon which they relied on for the motion “It is not the Court's Job to research and construct legal arguments open to parties In order to develop a legal argument effectively, the facts at issue must be bolstered by relevant legal authority; a perfunctory and undeveloped assertion is inadequate ” V 1 Tan Assoczatzon v West [ndzan Company Limited 2016 VI LEXIS 170 *4 (Super Ct Oct 18 2016) (citing Charles v CB] Acqmsztzons LLC 2016 VI LEXIS 62 *27 n 66) The Court declines to make such argument on the People 5 behalf See Joseph 1 Joseph 2015 V I LEXIS 43 *5 (V I Super Ct Apr 23, 2015) (‘ [[]n general, the Court will not make a movant's arguments for him when he has failed to do so ) Furthermore, as Defendant correctly pointed out in his opposition, being extremely busy, by itself, does not establish excusable neglect “[C]ourts in the Virgin Islands have consistently held that a busy schedule ofcounsel, by itself, does not establish excusable neglect ’ Edwards v Hess 011 VI Corp 69 V l 136 142 (V I Super Ct June 28 2017) (quoting Barshmger v Legislature ofthe V I ofthe U S 2014 V I LEXIS 99 *7 (V I Super Ct Nov 10 2014) (footnote omitted) (unreported) (quoting Peoplev Rivera 54 VI 116 124 (VI Super Ct 2010)) “A moving party must show more than merely being ‘too busy’ to have responded Edwards 69 VI at 142 (quoting GRS Dev Co v Jarrett 45 VI 21l 216(VI Terr Ct 2003) (citing Kan Packing Co v Lavzlla 39 VI 71 (VI Terr Ct 1998)) In this instance

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the People failed to provide any other basis to establish that they failed to act because of excusable neglect Additionally, the People also failed to provide any basis to establish good cause for the Court to extend the deadline As such, the Court will deny Plaintiff’s motion to file document out of time and strike from the record the People‘s opposition to Defendant s motion to dismiss See V l R CRIM P 45(b)(l)

2 Defendant’s Motion to Dismiss 1] 9 In his motion,6 Defendant moved to dismiss the Information for failure to state an offense pursuant to Rule 12(b)(3)(B)(v) of the Virgin Islands Rules of Criminal Procedure Defendant made the following assertions in support of his motion 7 (i) [T]he People 5 pleading fails to set forth any particularized criminal act on his part [and] if the People were to prove every fact alleged in its supporting Affidavit the People would fail to satisfy the elements of any offense listed in the Information (Memo of Law 2), (ii) ‘ [T]he People’s Information merely recites the language of the various statutes ” (Memo of Law 2); (iii) “The information herein alleges that Mr Acevedo was in a motor vehicle with three other individuals When the police attempted to stop the vehicle, the driver increased speed and led them on a high speed chase Nothing in the affidavit claims or

" As noted above, the Coun will strike from the record the People 5 opposition to Defendant’s motion to dismiss Thus the Court will not address Defendant 3 reply thereto Additionally the Court will also not address the People 8 supplement to their opposition to Defendant s motion to dismiss, which was filed Without motion therefor and without the permission of the Court Defendant referenced V I R CRIM P 3(b) (the information “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged ) United State.“ Rankin 8’0 F 2d 109 112 (3d 1989) (The test provides that the Information must (1) include the elements of the offense charged, (2) inform the defendant of what he must prepare to meet, and (3) give the defendant an opportunity to accurately demonstrate to what extent he may plead a former acquittal or conviction in case of a subsequent prosecution ); Russell 1 United States, 369 U S 749 765 (1962) (quoting United Staten Simmons 96 U S 360 362 (1878))( An [information] not framed to apprise the defendant with reasonable certainty, of the nature of the accusation against him is defective, although it may follow the language of the statute )‘ Gonsalies \ People 70 V1 812 848 (V1 2019) ( Since the charging information and probable cause affidavit are filed together, they should be viewed in tandem to determine if they satisfy the goal of putting the defendant on notice of the crimes with which [he] is charged ), People \ Whyte 62 V1 95 102 (Sup Ct Jan 22 2015) (quoting U S v Besnajian 910 F 2d 1153 1154 (3d 1990)( In considering a defense motion to dismiss an [information], the [trial] court accepts as true the factual allegations set forth in the [information] )

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even suggests that Mr Acevedo was the driver of the vehicle or that he in any way aided, abetted, or even encouraged the unnamed driver’s actions ’ (Id at 3); (iv) “The People further allege that when the police attempted to approach the vehicle afier it crashed, they encountered gunfire coming from the vehicle Nothing in the affidavit suggests that Mr Acevedo was in any way responsible for this alleged act (Id ) (v) The only actions actually attributed to Mr Acevedo in the affidavit, based upon the officers observations and Mr Acevedo’s alleged statement, are that he 1) exited the vehicle afier crash 2) attempted to leave the scene of the accident, 3) was shot at some time during the incident; and 4) reported that the police was responsible for the gunfire (Id ); (vi) Nowhere in the affidavit does not [sic] allege that Mr Acevedo ever possessed a firearm, much less any of the attendant charges Moreover, Mr Acevedo is not charged as a principal for any of the alleged conduct (Id , at 4), and (vii) “Given the incongruities between the Information and the supporting affidavit, Mr Acevedo waited to see if the discovery would provide some clarity Unfortunately, the discovery consists primarily of Mr Acevedo’s medical records regarding the injuries sustained in the incident and reports regurgitating the same noninformation as the affidavit ” (Id )

A Standard of Review

1! 10 Rule 12(b)(3)(B) of the Virgin Islands Rules of Criminal Procedure allows the defendant to challenge the defect in the charging document such as “failure to state an offense ’ V I R CRlM P 12(b)(3)(B)(v) The Advisory Committee Comment to Rule 12(b) of the Virgin Islands Rules of Criminal Procedure provides that ‘ [s]ubpart (b) identifies a range of pretrial motions that may raise any defense objection, or request that the court can determine without a trial on the merits In other words, in determining a motion to dismiss for failure to state an offense the Court is only addressing Defendant’s facial attack of the information‘s deficiency in the charges and not

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addressing the merits of the information See People of the V I v Whyte 62 V I 95 102 (V I Super Ct Jan 22 2015) (quoting United States v DeLaurentzs 230 F 3d 659 (3d Cir 2000)) (“Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to dismiss an [information] is not a permissible vehicle for addressing the sufficiency of the government's evidence ); see also, United States v Bergrm, 650 F 3d 257, 265 (3d Cir 2011) (“Evidentiary questions such as credibility determinations and the weighing of proof should not be determined" on a motion to dismiss for failure to state an offense) In considering a defense motion to dismiss an [infomation], the [trial] court accepts as true the factual allegations set forth in the [information] ” Whyte, 62 V I at 102 (quoting Umted States v Besmajlan, 910 F 2d 1153 1154 (3d Cir 1990))

B Analysis

7 11 In this instance, Defendant argued in broad strokes that the information must be dismissed for failure to state an offense pursuant to Rule 12(b)(3)(B)(v) of the Virgin Islands Rules of Criminal Procedure (hereinafter ‘ Rule 12(b)(3)(B)(v) ’) to wit rather than explaining why each count of the information failed to state an offense, Defendant simply claimed that “[n]othing in the affidavit claims or even suggests that Mr Acevedo was the driver of the vehicle; or that he in any way aided abetted or even encouraged the unnamed driver’s actions,” that [n]othing in the affidavit suggests that Mr Acevedo was in any way responsible for this alleged act,” that “[n]owhere in the affidavit does not [sic] allege that Mr Acevedo ever possessed a firearm, much less any of the attendant charges ’ and that ‘Mr Acevedo is not charged as a principal for any of the alleged conduct” without any argument as to why such information was necessary for which specific count(s) to state an offense or any supporting authority thereto As noted above, “[i]t is not the Court's job to research and construct legal arguments open to parties In order to develop

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a legal argument effectively, the facts at issue must be bolstered by relevant legal authority, a perfunctory and undeveloped assertion is inadequate V 1 Tax: Assoczatzon, 2016 V I LEXIS 170 at *4 The Court declines to make such argument on Defendant s behalf See Joseph, 2015 V I LEXIS 43 at *5 As such the Court will deny Defendant s motion to dismiss for failure to state an offense 8 CONCLUSION

Based on the foregoing, it is hereby ORDERED that the People’s motion to file their opposition to Defendant s motion to dismiss out of time filed on January 28, 2022 is DENIED, and the People’s opposition to Defendant s motion to dismiss is STRICKEN FROM THE RECORD And it is further

ORDERED that Defendant s motion to dismiss filed on November 16 2021, is DENIED ilk

DONE and so ORDERED this .9 day of April 2023

ATTEST E 3% : ; Egg Xégié :i Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Senior Sitting Judge of the Superior Court

By 92/246“A Court Cler

I

r [7

Dated 5 M

8 The Court must note that while Rule 12(b)(3)(B)(v) permits a defendant to bring a motion alleging a defect in the information for failure to state an offense at any time before trial Defendant s arguments seem to challenge the sufficiency of the People‘s evidence underlying the various counts in the infomatlon rather than challenge the facial validity of the information itself To address Defendant 5 claims as to these issues the sufficiency of the People 3 evidence and the People’s ability to prove their case would require fact finding, witness testimony, and credibility determinations which is not permitted at this present procedural stage To put it another way Defendant is attempting to dismiss the information by way of summary judgment which is not the purpose of Rule 12(b)(3)(B)(v) If Defendant wants to challenge the information for lack of specificity or sufficiency, Defendant may move for a bill of particulars Sce V l R CRIM P 3(e) ("The court may direct the government to file a bill of particulars The defendant may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits ")

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

People of the Virgin Islands v. Nahjeeb Case Number: SX-2021-CR-00201 Acevedo Charges: 14 V.I.C. 922(a) - Murder 1st Degree

14 V.I.C. 922(a) - Murder 1st Degree 14 V.I.C. 2253(a) - Possession Of An Unlicense Firearm

14 V.I.C. 2253(E) - Unauthorized Possession of a Firearm in a Vehicle 14 V.I.C. 2253(f) - Poss. Of An Unlicense Firearm W. A 100 Ft Of Sch.

14 V.I.C. 297(2) - Assaults Another With Deadly Weapon

14 V.I.C. 297 - Assault Third Degree 23 V.I.C. 479(a) - Illegal Discharge of a Firearms

14 V.I.C. 1382 - Unauthorized Use Of A Vehicle

14 V.I.C. 625 (a) - Reckless Endangerment In The 1st Degree 14 V.I.C. 2256(a) - Possession Or Sale Of Ammunition

NOTICE of ENTRY

of

Memorandum Opinion and Order To Jared William Burke, Esq. H. Hannibal O'Bryan, Esq. :

Please take notice that on April 06, 2023 a(n) Memorandum Opinion and Order dated April 5, 2023 was/were entered by the Clerk in the above-titled matter.

Dated April 06, 2023 Tamara Charles :

Clerk of the Court

By:

Janeen Maranda

Court Clerk II