Opinion
Docket No: FYC-73627-22/001, FYC-73626-22/001
01-12-2023
The PEOPLE of the State of New York v. J.N., N.T., AOs.
The People having moved pursuant to Criminal Procedure Law, Article 722, § 722.23(1), et seq. for an order preventing removal of this action to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion and Supporting Affidavit of Joelle M. Marino, Esq. (Assistant District Attorney), dated December 30, 2022; the Affidavit by Giovanni Genovese, Esq., dated January 7, 2023, on behalf of AO J.N.; no responsive papers having been received on behalf of AO N.T.; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:
Procedural History
On October 7, 2022, AOs J.N., and N.T. were arrested and charged with one count of Criminal Possession of a Weapon in the Second Degree, a class C felony as defined by Penal Law § 265.03(3). AO J.N. was additionally charged with one count of Obstructing Governmental Administration in the Second Degree, a class A misdemeanor as defined by Penal Law § 195.05, and one count of Resisting Arrest, a class A misdemeanor as defined by Penal Law § 205.30.
This Court arraigned the AOs on December 1, 2022. AO J.N. and AO N.T. were both released on RUS with ankle monitors.
This Court held a "six-day reading" on December 7, 2022. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c). This Court ordered this action to proceed in accordance with CPL § 722.23(1).
On December 30, 2022, Attorney Joelle Marino, on behalf of the People, filed a Notice of Motion requesting that this matter stay in the Youth Part. Attached to the People's Motion are the following exhibits: Felony Complaints of Police Officers A. Brennan dated November 30, 2022; Forensic Laboratory Analysis dated December 5, 2022; and Felony Complaints of Police Officers A. Brennan dated July 5, 2022.
Findings of Fact
The Felony and Misdemeanor Complaints of Police Officers A. Brennan dated November 30, 2022, provide that a white Kia drove past them with inadequate rear lamps and only one license plate. After stopping the vehicle, the Officers learned that the driver did not have a license. PO A. Brennan ordered the driver to exit the vehicle, which he disregarded and subsequently sped away in the vehicle, almost striking PO A. Brennan. The Officers pursued the vehicle after it fled, observing the vehicle slow down at Howlett Street, and then continue to speed off. The vehicle was eventually stopped, and all occupants were ordered out of the vehicle. Two adults exited the front seats. AOs J.N. and N.T. were in the backseat of the vehicle. Upon examination of Howlett Street, where the Officers observed the vehicle slow down, they recovered a loaded firearm. The firearm was submitted for analysis and found to be operable. The Officers transported both AOs to Buffalo Police Department "C" District for booking. AO J.N. attempted to flee from PO A. Brennan when exiting the station house to be taken to City Court booking and had to be restrained.
Conclusions of Law
Pursuant to CPL § 722.23(1)(a), the Court shall order removal of the action to Family Court unless, within 30 days of arraignment, the District Attorney makes a written motion to prevent removal of the action.
Pursuant to CPL § 722.23(1)(d), the Court shall deny the district attorney's motion to prevent removal unless the Court determines that extraordinary circumstances exist that should prevent the transfer of the action to Family Court. CPL § 722.23 does not define the term "extraordinary circumstances".
In People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021), the Court referenced the common dictionary and reviewed the legislative history of the Raise the Age legislation and interpreted "extraordinary circumstances" to mean that "the People's Motion Opposing Removal must be denied unless they 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."
New York State Assembly members debating the Raise the Age legislation indicated that the extraordinary circumstances requirement was intended to be a "high standard" for the District Attorney to meet, and denials of transfers to Family Court "should be extremely rare". NY Assembly Debate on Assembly Bill A03009C, Part WWW, at 39, April 8, 2017; see also, People v S.J., 72 Misc 3d 196 (Fam Ct 2021). "[T]he People would satisfy the ‘extraordinary circumstances’ standard where ‘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’. People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021) citing Assembly Record , p. 39.
The legislators indicated that in assessing "extraordinary circumstances" the Judge should consider the youth's circumstances, including both aggravating factors and mitigating circumstances. People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021) ; Assembly Record , pp. 39 to 40. Aggravating factors make it more likely that the matter should remain in Youth Part, and mitigating circumstances make it more likely that the matter should be removed to Family Court. People v S.J., 72 Misc 3d 196 (Fam Ct 2021).
Aggravating factors include whether the AO: (1) committed a series of crimes over multiple days, (2) acted in an especially cruel and heinous manner, and (3) led, threatened, or coerced other reluctant youth into committing the crimes before the court. People v S.J., 72 Misc 3d 196 (Fam Ct 2021) ; Assembly Record , p. 40.
Mitigating circumstances are meant to include a wide range of individual factors, including economic difficulties, substandard housing, poverty, difficulties learning, educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavior models, abuse of alcohol or controlled substances by the AO, or by family or peers. People v S.J., 72 Misc 3d 196 (Fam Ct 2021) ; Assembly Record at 40.
"The People may not, in any way, use the [AOs] juvenile delinquency history, including any past admissions or adjudications, in any application for removal under the statute." People v J.J., 74 Misc 3d 1223(A) [NY Co Ct 2022] ; citing 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).
CPL § 722.23(1)(b) mandates that every motion to prevent removal of an action to Family Court "contain allegations of sworn fact based upon personal knowledge of the affiant". This Court considered only those exhibits and documents whose content fall within the mandate of CPL § 722.23(1)(b) in making this decision.
This Court does not find this incident to be extraordinary. The facts are not highly unusual or especially heinous. The circumstances in this case are not so exceptional as to overcome the presumption that only "one out of 1,000 cases" would remain in the Youth Part and not be removed to Family Court. (Assembly, Record of Proceedings, April 8, 2017, pp. 37-38); see People v M.M., 64 Misc 3d 259, 268 [NY Co Ct 2019]. Here, the AOs were backseat passengers in a vehicle with an unlicensed adult driver, who fled from Officers upon being pulled over. AO J.N. attempted to run from Officers once he was detained. However, there are no allegations that the AOs committed any violent offenses. No shots were fired during the incident. The People do not allege that the officers witnessed the gun being thrown out of the vehicle, nor that the firearm was used in furtherance of the commission of another crime. The People do not allege that these AOs led, threatened, or coerced other reluctant youth into committing the crimes before the Court. To the contrary, the AOs’ co-defendants — the driver and front seat passenger — were adults.
The People argue that AO J.N. is not amenable to the heightened services and rehabilitative efforts provided in Family Court. Their Motion states that AO J.N. has history in Youth Part. AO J.N. has a pending Youth Part matter, having been charged on July 5, 2022 with Criminal Possession of a Weapon in the 2nd Degree and Reckless Endangerment, 1st Degree. This Court finds AO J.N.’s prior arrest for charges relating to possession of a weapon to be an aggravating factor. See People v. C.J., 156 N.Y.S.3d 830 (Fam Ct 2021). AO J.N.’s multiple gun possession cases demonstrate an extremely concerning pattern of behavior that the heightened services provided by Family Court have not been able to correct.
The People have not alleged that AO N.T. would not be amenable to heightened services and rehabilitative efforts provided in Family Court. The People have failed to overcome the burden of demonstrating that AO N.T. is not amenable to or would not benefit from the heightened services provided in Family Court.
The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. Extraordinary circumstances do not exist here, largely because the alleged incident was not highly unusual or especially heinous. The People did not meet its burden to prevent removal of this action to Family Court. The matter shall be removed to Erie County Family Court.
This constitutes the opinion, decision, and order of this Court.
SO ORDERED.