Opinion
FYC-0000-00
11-02-2020
The PEOPLE of the State of New York, v. D.S., Adolescent Offender.
Leo Shalit, Esq., was the Attorney for the Adolescent Offender. Honorable Madeline Singas, Nassau County District Attorney, by Kelsey Lorer, Esq.
Leo Shalit, Esq., was the Attorney for the Adolescent Offender.
Honorable Madeline Singas, Nassau County District Attorney, by Kelsey Lorer, Esq.
Conrad D. Singer, J.
The following papers were read on this motion:
People's Affirmation and Memorandum of Law Opposing Removal 1
Adolescent Offender's Affirmation in Opposition to People's Motion to Prevent
Removal to Family Court Including Memorandum of Law 2
People's Reply to Defendant's Affirmation in Opposition to People's Motion 3
The Adolescent Offender ("AO"), D.S. (D.O.B. 0/00/0000 ), is charged with three (3) counts of Attempted Murder in the Second Degree [Penal Law §§ 110/125.25(1) ]; one (1) count of Criminal Use of a Firearm in the First Degree [ Penal Law § 265.09(1)(a) ]; one (1) count of Criminal Possession of a Weapon in the Second Degree [ Penal Law § 265.03(1)(b) ]; and one (1) count of Reckless Endangerment in the First Degree [ Penal Law § 120.25 ]. The People have filed a motion pursuant to CPL § 722.23[1][b], opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances". The AO has filed an opposition to the People's motion and the People have filed reply papers in further support thereof. The People's Motion Opposing Removal is determined as follows:
The AO's date of birth incorrectly appears as "0/00/0000" on the Felony Complaint in this matter. The AO's opposition to the People's Motion Opposing Removal includes a copy of the AO's birth certificate, which indicates that 0/00/0000 is the AO's correct date of birth.
The charges filed against the AO arise from an incident alleged to have occurred on August 30, 2020 at about 1:15 AM, in H.N., Nassau County, New York. It is alleged that on that date and at that time, the AO, while acting in concert with another AO (hereinafter, "AO U.") and with multiple adult co-defendants, responded to the subject location with the purpose of killing three victims (i.e., Victim "1", Victim "2" and Victim "3"). It is further alleged that, inter alia , while at that subject location, an altercation took place, and a co-defendant fired three rounds from a handgun in the general direction of the three victims.
The AO was arrested in connection with these charges on September 7, 2020 and was arraigned in the Youth Part of the County Court on September 8, 2020. The matter was then scheduled for a statutory Sixth Day Appearance, to take place on September 14, 2020. At that appearance, the People waived the statutory Sixth Day Appearance and acknowledged that they could not meet their burden of establishing the existence of at least one of three statutory aggravating factors which would warrant retaining the case in the Youth Part. The parties agreed and consented to the Court basing its determination of whether to remove the case to the Family Court on the People's filing of a Motion Opposing Removal pursuant to CPL § 722.23[1][b].
Under CPL § 722.23 (2), if the People prove one of the following three factors "by a preponderance of the evidence", then the case will remain in the Youth Part and will not be removed to the Family Court: "[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."
The People's Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Kelsey Lorer, Esq., with accompanying Memorandum of Law and supporting exhibits appended thereto. The People argue that this AO's case should be retained in the Youth Part because the AO is charged with Attempted Murder in the Second Degree, a class B violent felony, and legislators intended that such crimes involving "the most serious felony conduct" should remain in the Youth Part. (Memorandum of Law in Support of Motion , dated 9/28/2020 ["People's Memo of Law in Support"], p. 3).
The People further argue that extraordinary circumstances exist as to this AO. First, they argue that he was a "ringleader" in this incident; that he set up the attack on the complainant in retaliation for his belief that the complainant had insulted his girlfriend, AO U. (People's Memo of Law in Support , p. 3). They allege that this AO and the complainant had been arguing via text message in the hours leading up to the shooting and that, after sending the complaining witness threatening text messages, this AO and AO U. showed up at the complaining witness's house with a group of people, at least one of whom was carrying a weapon. (People's Memo of Law in Support , p. 4). They contend that upon confronting the complainant's mother, this AO reiterated his intention to hurt the complainant, stating that "they were from Brooklyn. They mean business". (People's Memo of Law in Support , p. 4). The AO was also allegedly present for an exchange between the complainant's mother and a co-defendant, in which the co-defendant told the mother "watch me shoot your son right in front of your eyes". (People's Memo of Law in Support , p. 4).
Victims 1, 2 and 3 are the complainant's parents and sister; the subject incident occurred at the home of the complainant and Victims 1, 2 and 3. The complainant is referred to as "Adolescent Offender A." in the Felony Complaint.
The People also argue that the AO "acted in ‘an especially cruel and heinous manner’ ", when he "solicited and directed the attack" against the complaining witness. (People's Memo of Law in Support , p. 5). They argue that the AO had to know that the shooter was armed based on: 1) text messages that he sent to the complainant stating that the AO was going to kill him; 2) the AO's statements to the complainant's mother at the scene; 3) the AO's relationship with AO U., who was purportedly insulted by the complainant; 4) the AO's flight after the shooting; and 5) the fact that a FaceTime call was placed to the complainant before the incident during which the complainant was threatened and was shown bullets. (People's Memo of Law in Support , p. 6). Finally, they argue that there are no mitigating circumstances to be considered by the Court.
Defense counsel argues in opposition to the People's Motion Opposing Removal that no "extraordinary circumstances" exist and that therefore removal of the case to the Family Court is mandatory. (Affirmation of Leo Shalit , Esq. in Opposition , dated Oct. 1, 2020 ["Shalit Aff. in Opp."], ¶¶ 44, 47). The AO's counsel affirms that the AO "did not even know that one of his co-defendants had a loaded gun on his person". (Shalit Aff. in Opp. , ¶ 49). Counsel for the AO further contends that there are no allegations that this AO was the actual shooter, and there are also no allegations that this AO participated in the physical altercation that occurred once the AO and his co-offenders arrived at the subject location. (Shalit Aff. in Opp. , ¶¶ 53 and 54, 62 and 64).Counsel asserts that in the supporting deposition of the complainant's mother, the mother does not specify that this AO was the individual who showed her son bullets, even though the mother personally knows the AO and could have named him. (Shalit Aff. in Opp. , ¶ 67). Counsel further asserts that there is no evidence that bullets were actually shown to anyone, and states again that this AO did not know that there was a weapon in the car. (Shalit Aff. in Opp. , ¶ 67). Defense counsel argues that none of the victim/witnesses identified this AO as the shooter or the individual who possessed a firearm. (Shalit Aff. in Opp. , ¶¶ 53, 62, 67, 73 and 79).
Defense counsel further argues that there are "no heinous facts or circumstances" in this case. Counsel disputes the People's assertion that the AO and AO U. were the "ringleaders" of the incident. (Shalit Aff. in Opp. , ¶ 141). According to the AO's counsel, text messages between the complainant and the AO show that the complainant threatened to kill the AO, that the complainant baited the AO and made fun of him, and that he provided the AO with the address to his parents' house and told the AO to come there. (Shalit Aff. in Opp. , ¶ 142). Defense counsel submits inaccurately that the complainant is over 20 years old, while AO Suad is 16 years old. (Shalit Aff. in Opp. , ¶ 142). Counsel asserts that the AO's involvement in the incident, even if true according to the charging documents, does not rise to the level of "extraordinary circumstances" for the purpose of retaining the case in the Youth Part.
Counsel for the defense also asserts that, upon arrival to the subject location, the AO did not start the physical fight; it was the female adult co-defendants he was with who started the fight. (Shalit Aff. in Opp. , ¶ 157). Counsel further argues that this AO is 16 years old and "much younger than his male co-defendants", and that this AO tried to get the parties to leave the location prior to any shots being fired. (Shalit Aff. in Opp. , ¶ 157 and 158).
Defense counsel also argues that there are mitigating factors present, including that this AO has never been arrested before and has no prior contacts with the criminal justice system. (Shalit Aff. in Opp. , ¶ 165; Ex. 6 thereto). Counsel for the AO further argues that, as demonstrated by Probation's Report and the Resource Coordinator's Report, and based on his school and attendance records, this AO is amenable to, and would benefit from, Family Court services. (Shalit Aff. in Opp. , ¶ 166; 171 to 174; Exs. 7, 9 and 10 thereto). The AO's counsel cites to the AO's IEP, which is based on his purported learning disability, as well as academic assessment showing that he scores "low to average" on most assessments and that it has been recommended that the AO receive "constant supervision and redirection" and that he needs a "great deal of support in order to succeed". (Shalit Aff. in Opp. , ¶ 174, 177 through 179; Ex. 8 thereto).
The People argue in their Reply papers that the evidence belies the AO's assertion that he did not know there was a gun or bullets in the car. (Reply to Defendant's Affirmation in Opposition to the People's Motion by Kelsey Lorer , Esq. , dated 10/16/2020 ["Lorer Reply Aff."], ¶1). They cite to the AO's text messages to the complainant, in which he stated that he was "gonna kill" the complainant and that he "really caps[s]" people up. (Lorer Reply Aff. , ¶1). They also cite to the AO's statement to the complainant's mother that the individuals in the car were "from Brooklyn [and they] mean business". (Lorer Reply Aff. , ¶1). The People further argue that this AO was a "ringleader" of the attacks on the victims because the entire incident occurred as retaliation for the complainant insulting this AO. (Lorer Reply Aff. , ¶2).
FINDINGS OF FACT
According to the Felony Complaint, on or about August 30 at about 1:15 AM, at an address in H. N., Nassau County, New York, this AO while acting in concert with AO U. and with multiple adult co-defendants, responded to the subject address with the purpose of killing "victims 1, 2 and 3". It is further alleged that an altercation took place while at that subject location, and a co-defendant fired three rounds from a black .40 caliber handgun in the general direction of the three victims. It is alleged that the AO sent threatening text messages to the complainant, in which he stated "U don't wanna get intune. I have big niggas. U don't know what you just got your sled in to. Ur gonna fear me the most nigga if ur not dead I warned u, I'm ready to sho u Nigga when I see u your dead Just bring ur vest pussy Nigha. I'm gonna kill u" [sic ].
Victim "2" (the complainant's mother) and Victim "3" (the complainant's sister) allegedly identified this AO at the scene, and when the mother allegedly asked this AO to go home, he responded "We're not Long Island kids. We're from Brooklyn. We mean business". This AO was observed re-entering the white BMW before the vehicle left the scene.
Victim "1", i.e., the complainant's father, allegedly observed a co-defendant "sit on a door on the passenger side of the vehicle", fire one round from a black .40 caliber handgun, and fire two more rounds in the direction of where victims 1, 2 and 3 were standing. Crime Scene detectives allegedly recovered three .40 caliber pistol casings, consistent with the type of ammunition fired from a .40 caliber handgun. Law enforcement allegedly determined that one of the projectiles fired from the handgun struck a tree in front of the residence of victims 1, 2 and 3 and which was directly in front of where all three victims were standing.
It is alleged in the People's motion papers that the individuals who traveled in the BMW to the complainant's house on August 30, 2020, were this AO, AO U., two female adult co-defendants, one male adult co-defendant, and one individual yet to be arrested. (Affirmation of Kelsey Lorer , Esq. , in Support of Extraordinary Circumstances Motion , dated September 28, 2020 [Lorer Aff. in Support ], ¶ 3). It is further alleged that, earlier in the night of August 29, 2020, this AO and AO U., along with the other individuals in the BMW, placed a FaceTime video call to the complainant, in which the individuals in the car, and specifically this AO, were threatening the complainant. (Lorer Aff. in Support , ¶ 5). The complainant allegedly observed at least one of the individuals in the car hold bullets up to the camera. (Lorer Aff. in Support , ¶ 5).
It is further alleged that when the BMW arrived at the location of the incident, the complainant approached the vehicle and engaged in a verbal argument with several of the individuals in the car, in which they accused the complainant of previously calling AO U. a "whore". (Lorer Aff. in Support , ¶ 7). A physical altercation then ensued, which involved, inter alia , the co-defendant driver of the vehicle exiting the BMW and striking the complainant with a closed fist. (Lorer Aff. in Support , ¶ 7).
The complainant allegedly then retrieved a tan BB gun from inside his family's house, went back outside with the BB gun and displayed it to the individuals in the car, then fired the BB gun several times into the air in their direction and in the direction of the BMW, and then threw the BB gun into a garbage can beside the house. (Lorer Aff. in Support , ¶ 8). Around the same time, the complainant's father, his mother, and his sister all exited their house. (Lorer Aff. in Support , ¶ 9).
It is further alleged that AO U. is known to the complainant's mother through family friends and that, upon seeing AO U. outside, the complainant's mother approached her and asked her what was happening. (Lorer Aff. in Support , ¶ 10). It is further alleged that AO U. stated to the complainant's mother that they were there because her son had called AO U. a "whore". (Lorer Aff. in Support , ¶ 10). This AO then allegedly stated to the complainant's mother that the individuals in the car were "not Long Island kids. [They were] from Brooklyn. [They] mean business". (Lorer Aff. in Support , ¶ 11).
A co-defendant then allegedly approached the complainant's mother, and after she stated that the complainant is her son, the co-defendant allegedly responded, "watch me shoot your son in front of your eyes" and then reached into his hoodie pocket, pulled out what appeared to be a black handgun, and racked the slide. (Lorer Aff. in Support , ¶ 12). The complainant's mother then allegedly pulled AO U. off to the side and called her mother, and then called the police. (Lorer Aff. in Support , ¶ 10).
The People's motion papers included the three victims' supporting depositions. The complainant's sister attested that the physical altercation between the co-defendants and the victims included one of the female co-defendants grabbing the complainant's father by the shirt and telling him "I'm going to hurt your son. He called my friend a whore". (Lorer Aff. in Support , Exhibit 1 thereto). The mother attested in her supporting deposition that the co-defendants threw rocks at the complainant and one female co-defendant attacked the complainant. (Lorer Aff. in Support , Exhibit 1 thereto). It is further alleged in the mother's supporting deposition that one of the co-defendants told her "That is your son? He is going to get it today". (Lorer Aff. in Support , Exhibit 1 thereto)
The People's motion papers include a copy of an alleged text message conversation between this AO and the complainant. While the Court experienced considerable difficulty in deciphering the conversation (due to the relatively poor quality of the copy), it was able to discern that the text conversation included statements from the AO threatening violence against the complainant, even to the point of threatening to kill him. (Lorer Aff. in Support , Exhibit 4 thereto). At the same time, the AO apparently stated to the complainant that he "likes" the complainant's family, that he was eating with the complainant's grandmother, and that he knows the complainant's mom. (Lorer Aff. in Support , Exhibit 4 thereto; see also , Shalit Aff. in Opp. , ¶ 154).
The complainant, in turn, appears to have urged the AO to come to his home and appears to have used equally derogatory and inflammatory language against this AO. In fact, the complainant likewise appears to have threatened the AO with violence and threatened to kill him. (Lorer Aff. in Support , Exhibit 4 thereto).
Defense counsel's opposition papers include the uncontested allegation that this AO tried to get the parties to leave the victims' home prior to any shots being fired. (Shalit Aff. in Opp. , ¶ 157).
LEGAL CONCLUSIONS
Pursuant to CPL § 722.23(1), this Court is required to deny the People's Motion Opposing Removal unless the People establish the existence of "extraordinary circumstances" which warrant retaining this case in the Youth Part. ( CPL § 722.23[1][d] ["The court shall deny the motion to prevent removal"]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2018 Electronic Update, CPL§ 722.10 ). As the term "extraordinary circumstances" is not statutorily defined under CPL § 722.23, the Court is tasked with ascertaining the "legislative intent" and construing CPL § 722.23 to effectuate that intent. ( People v. Roberts , 31 NY3d 406, 418 [2018] ).
The Court finds, after referring to the common dictionary definition of the term "extraordinary", that the People's Motion Opposing Removal must be denied unless the People establish the existence of an "exceptional" set of facts which "go beyond" that which is "usual, regular or customary" and which warrant retaining the case in the Youth Part instead of removing it to the Family Court.
See People v. Andujar , 30 NY3d 160, 163 [2017] ; People v. Ocasio , 28 NY3d 178, 181 [2016], wherein the Court of Appeals held that the Court can refer to the "dictionary definition" of a statutory term for a "useful guidepost" in construing that term.
Merriam-Webster defines "extraordinary" as "going beyond what is usual, regular, or customary", and "exceptional to a very marked extent". (see Merriam-Webster Online Dictionary, display [https://www.merriam-webster.com/dictionary/extraordinary] ). Black's Law Dictionary defines the term "extraordinary circumstances" as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event". (10th ed. 2014).
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The Court finds further guidance on the legislative intent from the legislative history of the RTA legislation. ( People v. Roberts , 31 NY3d at 423 ; see also People v. Andujar , 30 NY3d at 166 ). The parties acknowledge in their respective motion paper submissions that the legislators who worked on the Raise the Age ["RTA"] bill intended for all cases, outside of those involving the most serious felony conduct, to be presumptively transferred from the Youth Part to the Family Court. (Assembly, Record of Proceedings , April 8, 2017 ["Assembly Record"], pp. 39; People's Memo of Law in Support , pg. 2; Shalit Aff. in Opp. , ¶ 38).
Legislators "intended that the exceptional circumstances requirement" would "be a high standard" for the People to meet. (Assembly Record , pg. 39). They contemplated that courts would only deny removal of a case to the Family Court "when highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the Family Court". (Assembly Record , pg. 39).
Further examination of the legislative history reveals that legislators intended the "extraordinary circumstances" standard "to be determined and shaped by a judge's ruling after the enactment and effectiveness of [the Raise the Age legislation]"; and that the standard "should take into consideration all the circumstances, including the mental capacity of the offending child". (Assembly Record , p. 83). Recognizing that "every case is going to be different", legislators directed that every case would be "looked at by the judge individually, to determine what kind of factors— both aggravating and mitigating—there are in the case, to determine whether or not" the particular case "passes the exceptional circumstances test". (Assembly Record , pp. 83-84).
Consistent therewith, legislators directed that "Every case is to be judged on its own merits ", taking into consideration certain "guideposts" such as whether the crime was committed in a "cruel and heinous manner," and/or whether "the defendant was a ringleader". (Assembly Record , p. 85). The legislators predicted that the cases would be "rare" where the Court would find "extraordinary circumstances" which warrant keeping a case in the Youth Part. (Assembly Record , p. 85).
In this case, mindful of the legislative directives discussed above, and after considering the arguments raised by both parties in their motion papers and reviewing and evaluating their respective supporting exhibits, the Court finds that "extraordinary circumstances" exist which warrant keeping this AO's case in the Youth Part.
First, the Court notes that the AO has been charged with Attempted Murder in the Second Degree, a highly serious, violent felony offense, and has also been charged with multiple firearm-related offenses. The Court finds that the serious and violent allegations supporting those charges, particularly the allegations that this AO threatened to kill the complainant, and the allegations that he and AO U. orchestrated the entire incident, which resulted in one co-defendant firing a gun multiple times close to where the victims were located outside of their home, favors retaining the case in the Youth Part.
Moreover, the People have persuasively argued that the impetus for the incident was this AO's desire to retaliate against the complainant for insulting his girlfriend, AO U. While this AO may not have necessarily "coerced" or "threatened" any other youths to participate in the subject incident, the Court nevertheless finds an additional aggravating factor based on his clear role in setting up the entire incident. Based on this Court's review of the Felony Complaint and the parties' respective motion papers, it is clear that this AO undertook at least a "ringleader-type" role, such that, if not for this AO soliciting their participation, the other defendants would not have come to the victims' home in the wee hours of the morning and engaged in a physical altercation with the complainant and his family, and which culminated in one co-defendant firing a gun multiple times in the direction of the victims.
Evidence of this AO's "ringleader-type" role include, inter alia , the AO's extensive text message conversations with the complainant in which he mocked the complainant, goaded him, called him derogatory names, threatened to kill him, threatened that he would bring his friends and told the complainant that he should bring his "vest". (Lorer Aff. in Support , Ex. 4 thereto; Shalit Aff. in Opp. , Ex. 1 thereto). Additional evidence that the AO undertook a leadership role in connection with the incident includes his alleged statement to the complainant's mother that "We're not Long Island kids. We're from Brooklyn. We mean business". (Lorer Aff. in Support , ¶ 11).
Additionally, the entire incident clearly arose from the AO's desire to retaliate against the complainant for insulting his girlfriend, based on AO U.'s statement to the complainant's mother that this AO, her boyfriend, was at the complainant's house to fight "because your son called me a whore". (Shalit Aff. in Opp. , Ex. 3 thereto). While this AO may not have personally possessed or fired the firearm in the direction of the victims, or necessarily personally engaged in the physical attacks carried out against them, the People have successfully demonstrated that the entire incident would not have occurred were it not for this AO's role in orchestrating the same.
The Court further finds that the circumstances alleged in this case are "highly unusual" and rather "heinous". The incident that was initiated by this AO and AO U. not only put the complainant at risk, but, moreover, caused substantial danger to the complainant's family members, who were utterly innocent and vulnerable throughout the entire altercation. Moreover, it is undisputed that the AO was already familiar with the complainant's mother and sister, and was apparently familiar with his grandmother, and purported to "like" the complainant's mother and grandmother, and yet inexplicably proceeded with a group attack against the complainant and his family members at 1:15 AM and in front of his family's home. (Lorer Aff. in Support , Exhibit 4 thereto; see also , Shalit Aff. in Opp. , ¶ 154). When the complainant's mother apparently tried to reason with the AO and told him to take his friends and "go home", the AO refused and instead told her "We're not Long Island kids. We're from Brooklyn. We mean business". (Shalit Aff. in Opp. , ¶ 154). The Court further finds it highly relevant that this AO was present when a co-defendant displayed a firearm to the victims, after which he apparently made no effort to deescalate or defuse the situation. (Lorer Aff. in Support , ¶¶ 11 and 12).
The Court finds it a mitigating factor that this AO was among the youngest in the group of offenders and finds it a further mitigating factor that this AO apparently has no prior involvement in the criminal justice system. The Court is further mindful of the probation, school and attendance records appended to defense counsel's opposition papers, and defense counsel's argument that this AO's learning disorder and apparent substance abuse issues constitute mitigating circumstances. However, after reviewing the same, it appears to the Court that this AO has a strong familial and community support system at home and at school, where the AO receives additional individualized support services to optimize his educational performance.
Under the totality of the circumstances, the Court finds, having balanced the aggravating and mitigating factors in this case [see, e.g. , People v. B.H. , 63 Misc 3d 244, 250 (Sup Ct Nassau County 2019) ], and considering the seriousness of the charges brought against this AO, that there are extraordinary circumstances which warrant keeping this AO's case in the Youth Part through disposition.
Accordingly, the People's Motion Opposing Removal to the Family Court is granted and the AO's case will remain in the Youth Part for all future proceedings.
This constitutes the opinion, decision and order of this Court.