Opinion
Nos. FYC-71944-23 FYC-71944-23 FYC-72047-23
08-14-2023
The People of the State of New York v. J.P., AO.
Michael McHale, Esq. (Assistant District Attorney) Michael Cimasi, Esq. (for the Principal)
Unpublished Opinion
Michael McHale, Esq. (Assistant District Attorney)
Michael Cimasi, Esq. (for the Principal)
Brenda M. Freedman, J.
The People having moved pursuant to Criminal Procedure Law, Article 722, § 722.23(1), et seq. for an order preventing removal of these actions to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion to Prevent Removal to Family Court and Supporting Affidavit of Michael J. McHale, Esq. (Assistant District Attorney), dated July 28, 2023; Attorney Affidavit in Opposition submitted on August 7, 2023 by Michael C. Cimasi, Esq. on behalf of AO J.P.; 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 June 20, 2023, AO J.P. was arrested and charged with one count of Criminal Mischief in the Third Degree, a class E Felony, under Penal Law § 145.05(2). This was subsequently charged under FYC-71944-23.
On June 30, 2023, AO J.P. was arrested and charged with one count of Reckless Endangerment in the First Degree, a class D Felony, under Penal Law § 120.25, one count of Criminal Possession of Stolen Property in the Fourth Degree, a class E felony under Penal Law §165.45(5), and one count of Unauthorized Use of a Vehicle in the Third Degree, a class A Misdemeanor under Penal Law §165.05(1). This was subsequently charged under FYC-72047-23.
On June 30, 2023, Accessible Magistrate Gary A. Wilson arraigned AO J.P. and released AO J.P. to his father, with an appearance scheduled for July 3, 2023 in Family Court.
On July 3, 2023, Hon. Sharon LoVallo heard this matter and continued AO J.P.'s release, and AO J.P. accepted voluntary probation services.
On July 6, 2023, this Court held a felony hearing and concluded that the People did not establish the requisite reasonable cause to believe AO J.P. committed the alleged felonies. Additionally, this Court held a six-day reading where 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).
The People filed a Motion to Prevent Removal to Family Court on July 28, 2023.
Findings of Fact
It is alleged that on June 20, 2023, victim B.M. was leaving a restaurant located in Buffalo, New York when she approached her 2021 Kia Sportage to place her daughter in the vehicle and drive home. Upon opening her door, she discovered a male, later identified as AO J.P., in the driver's seat of her vehicle and a co-defendant standing beside her vehicle. Further, the victim observed damage to the steering column of her vehicle, rendering the vehicle unable to drive. AO J.P. and the co-conspirator fled the scene upon being discovered by the victim and were subsequently arrested. AO J.P. was later issued an appearance ticket and released on his own recognizance.
It is further alleged that on June 30, 2023, Buffalo P.D. received a call regarding a grey Kia Sportage driving recklessly around a neighborhood. Upon arrival at the scene and observation of a vehicle that met the description, the Officers ran a license plate check, only to discover that the vehicle had been reported as stolen from East Aurora earlier that day. As the Officers approached the vehicle in their marked police cruiser, the suspect vehicle fled at a high rate of speed. During the pursuit, the Officers observed the suspect vehicle driving at high rates of speed through multiple traffic control devices, almost striking pedestrians. The suspect vehicle subsequently struck another vehicle, which was occupied by a driver who sustained minor injuries. The suspect vehicle then careened into a stop sign and flipped over. Both the driver and passenger of the suspect car were observed exiting the vehicle and fleeing the Officers on foot. Both occupants were subsequently arrested, with one occupant being identified as AO J.P.
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 N.Y.2d 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.
AO J.P. was arrested twice in the matter of ten (10) days, each occasion with a co-conspirator. The proximity of these two arrests is highly concerning. AO J.P. is not clearly designated as the leader of the currently charged criminal activities, and AO J.P. was not alleged to have coerced others into engaging in the currently charged criminal activities. See People v S.J., 72 Misc.3d 196 (Fam Ct 2021). AO J.P. is not alleged to have displayed any weapon as part of the current charges and AO J.P.is not charged with possessing any firearms.
The facts as alleged against AO J.P., although troublesome, are not highly unusual and heinous. As far as this Court is aware, AO J.P. has no criminal history, and he does not have any other cases pending in Youth Part. This Court, after considering the aggravating factors and mitigating circumstances, finds the present matter is not one of extraordinary circumstances such to prevent the charges against AO J.L. from being removed to Family Court. 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]. The People have not provided strong proof that this AO is not amenable or would not benefit in any way from the heightened services in the family court.
The People have not met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, this Court finds that extraordinary circumstances do not exist to warrant these matters remaining in the Youth Part. These matters shall be removed to Erie County Family Court.
This constitutes the opinion, decision, and order of this Court.
SO ORDERED.