Opinion
FYC 70353-21/001
03-15-2022
The PEOPLE of the State of New York v. J.J., An Adolescent Offender, Defendant.
For the People: David J. Clegg, District Attorney, by Elizabeth A. Culmone-Mills, Assistant District Attorney For the Defendant: Ulster County Public Defender's Office, by Dana Rudikoff, Esq.
For the People: David J. Clegg, District Attorney, by Elizabeth A. Culmone-Mills, Assistant District Attorney
For the Defendant: Ulster County Public Defender's Office, by Dana Rudikoff, Esq.
Bryan E. Rounds, J.
Submissions Considered
1. Affirmation in Support of the People's Motion to Prevent Removal, pursuant to CPL § 722.23(1), dated January 14, 2022; and
2. Affirmation in Opposition to the People's Motion to Prevent Removal, pursuant to CPL § 722.23(1), dated February 1, 2022.
The defendant, J.J. (date of birth xx/xx/05), is charged as an adolescent offender (hereinafter "AO") ( CPL § 1.20[44] ) in a felony youth complaint with four counts of Arson in the Second Degree, a Class B Violent Felony, in violation of Penal Law § 150.15.
PROCEDURAL HISTORY
On December 18, 2021, J.J. was arrested and charged as set forth above. Pursuant to CPL § 722.21(1), he was arraigned in Kingston City Court before the most accessible magistrate (Hon. Philip W. Kirschner), bail was set, and the matter was adjourned to the Ulster County Youth Part for December 21, 2021.
On December 21, 2021, the AO was arraigned in the Ulster County Youth Part by the Hon. James Farrell. At arraignment, the People conceded that they could not prove by a preponderance of the evidence the existence of any of the aggravating factors set forth in CPL § 722.23(2)(c), thereby rendering this action presumptively subject to removal to Family Court. The People did, however, give notice of their intention to file a motion, pursuant to CPL § 722.23(1)(a), seeking to prevent removal on the grounds that the extraordinary circumstances of the case warrant keeping it in the Youth Part ( CPL § 722.23(1)(d) ). The matter was adjourned until January 18, 2022, to permit the People to file said motion.
On January 14, 2022, the District Attorney's office filed the instant Notice of Motion with an Affirmation in Support and exhibits attached thereto.
On February 1, 2022, the AO filed his Affirmation in Opposition. No exhibits were attached thereto.
On February 16, 2022, after having reviewed the parties’ submissions, the Court issued an Order granting a hearing on the People's application, to be held on February 25, 2022 at 10:00 a.m.
Between February 16, 2022 and February 25, 2022, the parties continued to negotiate the issue presented in the instant motion in an attempt to resolve the issue without court intervention.
Ultimately, the parties agreed to forego a fact-finding hearing and to have the Court adjudicate the motion upon written submissions.
FINDINGS OF FACT
Four separate felony complaints have been filed, but the charges seem to emanate out of a single incident that is alleged to have occurred on December 18, 2021, at the Children's Home of Kingston ("the Home"). Specifically, it is alleged that, while a resident of Holcomb Cottage at the Home, the AO set fire to the contents of his private room within Holcomb Cottage with the intention of damaging the building itself. It is also alleged that the AO set the fire knowing that three other residents of the Home and a residential counselor were present inside the building at the time and, further, that said fire caused actual damage to the building.
Attached to the felony complaints are the same two supporting depositions that the People proffered as exhibits to their written motion. Each of them is from an employee of the Home who claims to have made some personal observations of fact relative to the incident.
The deposition of Christian Rodriguez states that, as of the date in question, Rodriguez had been employed by the Home as a Residential Counselor for approximately two years and, further, that he was working his scheduled shift on the date and at the time in question. Rodriguez was inside Holcomb Cottage, performing his daily duties as a residential counselor, when he heard the fire alarm begin to sound. After calling the on-duty supervisor, James Garrick, Rodriguez checked the private rooms within the cottage and he noticed that three of the residents (Chris, John and Thomas) were in their respective rooms, but also that he saw the AO come out of the bathroom and exit the building. When he smelled smoke coming out of Room No.4, which he referred to as "J.J.’s" room, he knew there was a fire and he directed everyone to leave the building and wait out by the street for the first responders to arrive. While Rodriguez was waiting outside for the first responders, he overheard the AO say that he was "sick and tired of the rotten food from the Children's Home" and "that is the reason [I] started the fire."
The deposition of Tara Bullock states that, as of the date in question, she had been employed by the Home for approximately six years as a child-care worker. On December 18, 2021, at approximately 1:30 p.m., she was performing her daily duties inside Forsythe Cottage when she heard the fire alarm begin to sound. She looked outside and saw a supervisor named Richard McIntosh coming out of Holcomb Cottage. Then, she saw the AO walk towards McIntosh and she heard the AO yelling, in sum and substance, that he was tired of wearing the same clothes and that he was tired of robbing from cars to get money for a meal. Bullock then heard the AO threaten to set a fire every day until he "burns this bitch down."
The People have also proffered as exhibits certain reports and case histories from several sources. These exhibits document, to some degree, the AO's personal history, as well as his placement history and progress with services provided to him through the Family Court. The AO has been in and out of the foster care system since he was three years old. When the AO was eight years old, his biological mother surrendered her parental rights. The parental rights of his biological father were terminated in 2019. Although there have been many attempts to place the AO with suitable foster parents, these placements have ended with the AO being returned or removed. He has been diagnosed with Disruptive Mood Dysregulation and Post Traumatic Stress Disorders and he has been intermittently treated medically and pharmaceutically for these conditions. Over time, he has exhibited aggressive and destructive behaviors that have led to the AO being hospitalized or admitted to behavioral health units. The AO has learning deficits and, when he was attending school, he was given an Individualized Educational Plan (IEP) with a classification of Emotional Disturbance.
Critically, though, the exhibits indicate that the AO's mental and emotional health and his level of performance and social interaction seem to improve when the AO resides in a group setting, such as a residential treatment center (RTC). The AO himself expresses his preference for residing in an RTC. The exhibits offered by the People are replete with references to the AO's inability to regulate or control his emotions, his explosive temper and aggressive behaviors and his lack of impulse control — all of which the AO seemed to address more constructively when in a larger group setting. Further, when the AO was residing in an RTC or other large group setting — and his therapeutic needs were being addressed more directly — he was noted as being "funny and charismatic" and "polite and talkative."
CONCLUSIONS OF LAW
There is a dearth of caselaw on this issue and many courts have sought guidance and direction from the legislative history and intent of the statute. Although the legislature has not defined "extraordinary circumstances," its intent has come more sharply into focus as courts have been asked to discern and refine it. During the debate in the Assembly, in response to questions from other members, a sponsor of the bill described the "extraordinary circumstances" standard as "a high standard for the DA to meet." He went on to state that "[t]ransfer to the family court should be denied only when highly unusual and heinous facts are proven and there is strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court," (NY Assembly Debate on Assembly Bill A03009C, Part WWW, at 39, April 8, 2017) (emphasis added).
Other trial courts, employing these same basic considerations, have begun to formulate ideas about what constitutes "extraordinary circumstances." The term "extraordinary" has been found to mean "beyond what is usual, regular, or customary," People v. M.R., 68 Misc 3d 1004, 1009 (Sup. Ct. Kings County, July 15, 2020), and "highly unusual" and "exceptional," People v. R.U., 70 Misc 3d 540, 547 (Nassau County Court, November 2, 2020). A more specific and refined definition is "exceptional to a very marked extent," People v. M.M., 64 Misc 3d 259, 267 (Nassau County Court, April 30, 2019) ; People v. J.P., 63 Misc 3d 635, 649 (Sup. Ct. Bronx County, February 11, 2019).
This court interprets the legislative intent as giving rise to a number of salient procedural and substantive issues. First, the burden of proof falls squarely upon the People. The threshold inquiry is whether the People can prove, by a preponderance of the evidence, the existence of any one of the three aggravating factors set forth in CPL § 722.23(2)(c). If the People fail to meet this initial burden, the matter is rendered presumptively subject to transfer unless, within 30 calendar days of the AO's arraignment, the People file a motion to prevent removal. CPL § 722.23(1)(a) ; see also, People v. M.R., 68 Misc 3d at 1006, supra ; People v. J.P., 63 Misc 3d at 648, supra (emphasis added).
In a motion to prevent transfer, the People are required to prove the existence of "extraordinary circumstances" warranting adjudication in the Youth Part rather than Family Court ( CPL § 722.23(1)(d) ). At this stage, however, the statute has already rendered the matter presumptively subject to transfer. Since the initial burden of proof on the People is a mere preponderance of the evidence, an additional quantum of proof is necessary to rebut the statutory presumption. Logically, then, the burden of proof on this type of motion must be something more than a mere preponderance. It should be closer to or resemble "clear and convincing evidence."
Second, the debate excerpt cited above seems to contemplate a two-part test. It is not enough to prove the existence of "highly unusual and heinous facts" in the underlying case. The People must also establish "strong proof that the [AO] would not benefit in any way from the heightened services in the family court," NY Assembly Debate on Assembly Bill A03009C at 39.
Third, the People may not rely exclusively on the allegations set forth in the accusatory instruments. Rather, their motion must "contain allegations of sworn fact based upon the personal knowledge of the affiant" CPL § 722.23(1)(b) ; see also People v. J.R., 2021 NY Slip Op. 50216(U) (Nassau County Court, March 1, 2021).
Fourth, the People may not, in any way, use the AO's juvenile delinquency history, including any past admissions or adjudications, in any application for removal under the statute. Family Court Act § 381.2(1) ; see also, People v. M.M., 64 Misc 3d at 269, supra, citing Green v. Montgomery, 95 NY2d 693, 697 (2001).
Finally, the court must view the proffered evidence in its totality and balance any aggravating factors established by the People against any mitigating factors argued and established by the AO. People v. T.P., 2021 NY Slip Op. 51048(U) (Nassau County Court, September 20, 2021), citing People v. B.H., 63 Misc 3d 244, 250 (Sup. Ct. Nassau County 2019).
CONCLUSION
It appears that the AO has tested the limits of the "heightened benefits" available to him through the Family Court. He has been in over 13 placements, including multiple placements in foster care homes. He has threatened former foster parents and their children and exhibited "explosive aggression" towards other foster parents and even his own family members. He has absconded or runaway from foster care homes on multiple occasions.
At times, he has refused to engage in treatment offered to him through the court and various programs or to take prescribed medications. He has refused to attend school programs and he has destroyed computer equipment to avoid having to attend classes virtually.
The AO has been hospitalized numerous times, not just for suicidal ideation or activity, but also for injuries he sustained while destroying the property of others out of frustration or during physical altercations. He has continually engaged in low-level criminal conduct, such as vandalism and larceny, simply because he did not like to services being provided to him. All these behaviors are troubling, to say the least. It should be noted that, although the People referred to the AO's open juvenile delinquency proceeding in their Affirmation, such reference was improper under the law and the Court has refused to consider it.
Yet, the court is mindful of the AO's equally troubling upbringing. He has lived almost his entire life without any meaningful parental figures because his own parents abandoned him at an early age. Before abandoning him, the AO's mother subjected him and his brother to physical violence to the point where the AO was removed from the custody of his biological mother after his mother whipped his brother with a jump rope. He has a documented psychiatric diagnosis and educational difficulties. Clearly, the AO has faced a never-ending, uphill battle.
The allegations in this case are quite serious and the AO's actions should not be minimized. Assuming, arguendo, that the allegations are true, deliberately lighting a fire in a residence and subjecting the other residents and staff to risk of serious physical injury is both frightening and criminal. There are ways to cry out for help short of arson. This court believes that if the AO continues unabated in this course of action, it will not be long before the AO gravely injures someone - or himself — and ends up in prison.
However, when the Court compares the AO's actions (and his apparent state of mind at the time he allegedly committed those acts) to the full range of behaviors and mental states that are criminalized under the Penal Law, it simply cannot characterize them as "highly unusual" or "heinous." His actions do not evince any measure of calculation or malice. There is no indication that anyone was hurt or that the AO intended to cause another person harm. There is no proof that the building itself was damaged to any degree. Even the AO's statement that he would "burn this bitch down" is linked directly by witnesses to his frustration over the conditions at the Home. The actions and statements of the AO, if accepted as true, are highly concerning, but they are not "exceptional to a very marked extent."
Moreover, Arson in the Second Degree (PL § 150.15) is a Class B Violent Felony and a conviction for that crime would subject the AO to a mandatory minimum state prison sentence of 5 years and a maximum sentence of up to 25 years.
After balancing the aggravating and mitigating factors in this case and, after due deliberation, this court finds that the People have failed to prove the existence of "extraordinary circumstances" as required by CPL § 722.23(1) and that there is no basis for retaining the matter in the Youth Part. Accordingly, the People's motion to prevent removal is denied. This case is removed to Family Court and this Court's file shall be sealed, as required by CPL § 725.15.