Opinion
XXX-00000-00
03-01-2021
The PEOPLE of the State of New York, v. J.R., Adolescent Offender.
Luigi Vigliotti, Esq., Counsel for the Adolescent Offender. Honorable Madeline Singas, Nassau County District Attorney, by Gregory Murphy, Esq.
Luigi Vigliotti, Esq., Counsel for the Adolescent Offender.
Honorable Madeline Singas, Nassau County District Attorney, by Gregory Murphy, Esq.
Conrad D. Singer, J.
The following papers were read on this Motion:
The People's Notice of Motion Opposing Removal and Supporting Papers 1
The Adolescent Offender's Affirmation in Opposition to People's Motion Opposing Removal 2
People's Reply Affirmation in Support of Motion Opposing Removal 3
Adolescent Offender's Sur-Reply in Opposition to the People's Motion 4
The defendant in this matter, J.R. (D.O.B. 00/00/0000) is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. The People have moved, by Notice of Motion dated February 4, 2021, for an Order pursuant to CPL § 722.23(1) directing that this matter remain in and not be removed from the Youth Part to the Family Court in Nassau County due to the existence of "extraordinary circumstances". ( CPL § 722.23[1][d] ). The AO has filed opposition to the People's motion and the People have filed Reply papers in further support thereof. Defense counsel thereafter submitted Sur-Reply papers, which were considered by the Court as discussed within.
The People's Motion Opposing Removal is determined as follows:
The AO is charged, by way of two felony complaints, with one count of Criminal Possession of a Weapon in the Second Degree [ Penal Law § 265.03(3) ] and one count of Criminal Possession of Stolen Property in the Fourth Degree [ Penal Law § 165.45 ]. The charges filed against the AO arise from an incident alleged to have occurred on January 19, 2021 at approximately 2:48 PM at a location in H., Nassau County, New York. The AO was arraigned on the Felony Complaint on January 20, 2021, in the Youth Part of the County Court, Nassau County.
The Court conducted the statutory "sixth-day appearance" in this matter on January 26, 2021, at which time the People acknowledged that they could not meet their burden for the purpose of the "sixth-day appearance". They stated that they would be opposing removal of the AO's case by filing a motion pursuant to CPL § 722.23(1) based on the existence of "extraordinary circumstances". They thereafter filed their Motion Opposing Removal which is the subject of this Decision and Order.
The People's motion consists of an affirmation from Assistant District Attorney Gregory Murphy, Esq. ( Affirmation in Support of Motion Opposing Removal Pursuant to CPL § 722.23 , dated February 4, 2021 ["Murphy Aff. in Support"]). Attached to ADA Murphy's affirmation are copies of the felony complaints in this matter. ( Murphy Aff. in Support , Ex. 1 thereto). ADA Murphy asserts that his supporting affirmation is based upon information and belief, the sources of said information and basis for said belief being his "conversations with witnesses, attorneys, and members of law enforcement, as well as [his] review of the files of the Office of the District Attorney pertaining to this matter and the defendant's prior criminal history". ( Murphy Aff. in Support , ¶ 2).
The People contend that there are "extraordinary circumstances" which warrant retaining this case in the Youth Part. First, the People contend that retention of this case in the Youth Part is warranted due to the seriousness of the charges filed against the AO, which include one count of Criminal Possession of a Weapon in the Second Degree, a C violent felony offense. ( Murphy Aff. in Support , ¶ 6[a]).
Second, the People contend that retention is warranted due to the AO's criminal history and character. ( Murphy Aff. in Support , ¶ 6[b]).They contend that the AO is a self-proclaimed and unapologetic Crib gang member, and that he was last before this Court on January 7, 2020 on a prior incident of "extreme gang violence" in which he pled guilty to attempted murder for a gang-motivated shootout which occurred in broad-daylight on a commercial/industrial street in H., New York. ( Murphy Aff. in Support , ¶ 6[b]). The People further contend that this Court previously showed the AO leniency when sentencing him in the prior case, by giving him the benefit of a Youthful Offender adjudication and sentencing him to one and one-third years to four years’ incarceration, after an earlier commitment of sentencing him to an indeterminate period of incarceration as a Juvenile Offender . ( Murphy Aff. in Support , ¶ 6[b]). They contend that, "[m]erely five months after" the AO was released to parole, and while still on parole, the AO "is now back before this Court on another gang-related case again involving the [AO's] possession of a loaded firearm on the streets of H.". ( Murphy Aff. in Support , ¶ 6[b]).
In his initial moving papers, ADA Murphy incorrectly asserts that the Court's commitment had been an indeterminate period of incarceration of 3 to 9 years; in his Reply papers, ADA Murphy correctly contends that the initial incarceration period had been a period of 2 to 6 years’ incarceration as a Juvenile Offender.
Third, they contend that retention of this case is warranted due to "[t]he impact of removal on the safety and welfare of the community as well as public confidence in the criminal justice system". ( Murphy Aff. in Support , ¶ 6[c]). They assert that this AO presents as a serious risk to the safety and welfare of the community and removing his case to the Family Court would constitute an undeserving and unjustifiable risk to the public's safety and welfare. ( Murphy Aff. in Support , ¶ 6[c]).
The AO's opposition to the People's Motion Opposing Removal consists of an affirmation from his counsel. ( Affirmation in Opposition to People's Motion Opposing Removal by Luigi Vigliotti , Esq. , dated February 10, 2021 ["Vigliotti Aff. in Opp."]). Defense counsel asserts that his affirmation is based upon information and belief, the basis of which being his "examination of the various papers filed herein, conversations had with the District Attorney's Office, [counsel's] own independent investigation of this matter and upon conversations had with the AO and with the AO's mother. ( Vigliotti Aff. in Opp. , ¶ 2).
Defense counsel argues that that the AO's case should be removed because the People failed to prove by a preponderance of the evidence any of the three statutory factors which warrant denying the automatic removal of an AO's case to the Family Court. ( Vigliotti Aff. in Opp. , ¶¶ 7 and 8). Defense counsel further contends that the Court should deny the People's Motion Opposing Removal because they failed to comply with the statute's requirements that their motion contain allegations of sworn fact based upon personal knowledge and that they indicate if the People are requesting a hearing. ( Vigliotti Aff. in Opp. , ¶ 10).
Defense counsel argues that in this case, the People fail to indicate if they are requesting a hearing, that ADA Murphy has based the entirety of his motion "upon information and belief rather than first hand knowledge", and that there are several instances of "unsubstantiated allegations" in the People's motion, including the allegation that the AO is a ‘self-proclaimed and unapologetic Crip gang member’. ( Vigliotti Aff. in Opp. , ¶ 11). Defense counsel further contends that ADA Murphy lacks any personal knowledge of the events relating to the AO's attempted murder conviction. ( Vigliotti Aff. in Opp. , ¶ 11).
Defense counsel further argues that that the People have failed to demonstrate that extraordinary circumstances exist which warrant keeping the case in the Youth Part. They argue that the allegations in the felony complaints, while appearing serious "on the surface", are "very defensible" based on a review of the felony complaints in their entirety. ( Vigliotti Aff. in Opp. , ¶ 19). They argue that the facts of this case do not qualify as "highly unusual and heinous" as has been held to warrant retention of a case in the Youth Part. ( Vigliotti Aff. in Opp. , ¶19). Defense counsel acknowledges that his client has a prior conviction for a serious offense, but argues that to deny removal to the Family Court simply because he has been in trouble before, particularly where the evidence of guilt in the current incident is "flimsy", would undermine and negate the entire intent of the RTA legislators. ( Vigliotti Aff. in Opp. , ¶ 20).
Additionally, defense counsel argues that there are mitigating factors present in the AO's case, including that his father has been incarcerated since 2015 and he has been raised by one parent since that time; and the AO's family has been on public assistance in the past and he has grown up in poverty. ( Vigliotti Aff. in Opp. , ¶21). Defense counsel further argues that the assertions in the People's motion concerning gang affiliation and the AO carrying a firearm to "commit acts of gang violence and/or murder" are speculative and irresponsible. ( Vigliotti Aff. in Opp. , ¶ 22). Defense counsel argues that the People's case is "weak", that there are several avenues of defense to the charges currently pending against the AO, and that if this case were to proceed to trial the People would have a difficult time establishing guilt and that would cause the public's confidence in the Criminal Justice System to be undermined. ( Vigliotti Aff. in Opp. , ¶ 22).
In his Reply Affirmation, ADA Murphy asserts that, while it was not explicitly stated in his affirmation supporting his initial moving papers, his knowledge of the circumstances and events leading to the AO's attempted murder conviction are based upon his personal knowledge. ( Reply Affirmation in Support of Motion Opposing Removal of Gregory Murphy, Esq. , dated February 22, 2021 ["Murphy Reply Aff."], ¶ 3). ADA Murphy asserts that he was the prosecutor assigned to the prosecution of the AO's attempted murder case, and in that regard had reviewed all of the evidence against the AO, including evidence of the AO's gang membership. ( Murphy Reply Aff. , ¶ 3) He further asserts that he is fully familiar with the procedural history of that case, having been present for most court appearances in that case, including both the AO's plea and sentencing. ( Murphy Reply Aff. , ¶ 3).
He further contends that when he submitted his supporting affirmation with his initial moving papers, he mistakenly recalled the Court's commitment to the AO in that case, and clarifies that the Court's commitment at the time of the AO's plea was to sentence him to two to six years’ incarceration as a Juvenile Offender, and not to give him the benefit of a Youthful Offender ["YO"] adjudication, but the Court left open the possibility that the AO might persuade the Court to grant him YO treatment at sentencing. ( Murphy Reply Aff. , ¶ 5). The ADA also attaches various items of documentary evidence to his Reply Affirmation, including supporting depositions from law enforcement witnesses and what appears to be a case report from this case. ( Murphy Reply Aff. , ¶ 5, Exhibit 1 thereto).
In the AO's Sur-Reply, defense counsel argues that the Court should disregard the arguments set forth in the People's Reply papers and the exhibits attached thereto, as the People improperly used their Reply papers to cure deficiencies in their initial motion papers. ( Sur-Reply Affirmation of Luigi Vigliotti, Esq. , dated Feb. 22, 2021 ["Vigliotti Sur-Reply Aff."], ¶ 4).
FACTUAL ALLEGATIONS
Based on the allegations in the felony complaints and in ADA Murphy's affirmation in support of the People's Motion Opposing Removal, it is alleged that on or about January 19, 2021, at approximately 2:48 PM, the AO, his co-defendant/AO J.D., and not charged other C.N. were walking through the streets of H., Nassau County, New York. During this time both the AO and his codefendant/AO J.D. were allegedly each carrying their own loaded pistols. When they saw police surveilling and moving towards them, they allegedly approached a nearby dumpster and left the loaded firearms abandoned in the dumpster as they attempted to flee. The Felony Complaint alleges that the AO was observed dropping an "unknown object" into the dumpster which was located at the rear of 50 J. St. in H., Nassau County, New York. Law enforcement responded to that location after the AO was detained and they allegedly discovered a loaded black 9mm Ruger Serial # 000-00000 inside of the dumpster. It is further alleged that, upon further investigation, the firearm was stolen from Columbia, South Carolina on 03/03/2015.
ADA Murphy contends that he was the prosecutor assigned to the AO's prior case wherein he was convicted for attempted murder but, at sentencing, this Court vacated his conviction, replaced such conviction with a YO adjudication, and sentenced him to 1 1/3 years to 4 years’ incarceration. ( Murphy Aff. in Support , ¶ 6[b]). He further alleges that the AO was on parole at the time that he was arrested on the current charges. ( Murphy Aff. in Support , ¶ 6[b]).
CONCLUSIONS OF LAW
The People's Motion Opposing Removal is filed pursuant to CPL § 722.23[1], which provides, in pertinent part, that within thirty calendar days of an AO's arraignment the court shall order the removal of the action to the family court "unless the district attorney makes a motion to prevent removal" [ CPL § 722.23(1) ] and the court determines "upon such motion by the district attorney that extraordinary circumstances exist that should prevent the transfer of the action to the family court". ( CPL § 722.23 [1(d)]). CPL § 722.23(1) expresses an apparent presumption in favor of removing a case from the Youth Part to the Family Court. ( 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 ).
The term "extraordinary circumstances" is not defined under CPL § 722.23. Accordingly, this Court's "primary consideration is to ascertain and give effect to the intention of the Legislature". ( People v. Thomas , 33 NY3d 1, *5 [2019] ; People v. Roberts , 31 NY3d 406, 418 [2018] ). "Because ‘the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’ ". ( People v. Thomas , 33 NY3d at *5-6 ; People v. Roberts , 31 NY3d at 418 ).
In doing so, the dictionary definition of "extraordinary" is a "useful guidepost" in determining the "ordinary" and "commonly understood" meaning of "extraordinary circumstances". ( People v. Andujar , 30 NY3d 160, 163 [2017] ; People v. Ocasio , 28 NY3d 178, 181 [2016] ). The Court has referenced multiple dictionaries for the "ordinary and commonly understood" meaning of the phrase "extraordinary circumstances" , and finds that the People's Motion Opposing Removal must be denied unless the People prove the existence of a set of "exceptional" and "highly unusual" facts which warrant retaining the AO's case in the Youth Part. ( See CPL § 722.23[1][d] ).
See , e.g. , Merriam-Webster Online Dictionary, "extraordinary" [https://www.merriam-webster.com/dictionary/extraordinary]; see also Black's Law Dictionary defining 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].
Additionally, the Court has reviewed the legislative history of the RTA legislation as a further aid in statutory interpretation , and finds that it supports an interpretation of "extraordinary circumstances" as being a set of facts that are "highly unusual" and "exceptional". In a legislative debate held in April of 2017 before the RTA legislation was enacted into law, legislators extensively discussed the intended meaning of the "extraordinary circumstances" standard. ( Assembly, Record of Proceedings , April 8, 2017 ["Assembly Record"], p. 37). Many of the legislators who developed and promoted the RTA bill wanted all cases involving sixteen and seventeen-year-old's to be filed and heard exclusively in the Family Court. The mechanism through which felony cases would start in the Youth Part, subject to removal to Family Court, was part of a compromise to reach agreement on the legislation. ( Assembly Record , p. 37).
People v. Roberts , 31 NY3d at 423 ; see also People v. Andujar , 30 NY3d at 166 ([" ‘While ‘the words of the statute are the best evidence of the Legislature's intent,’ legislative history may also be relevant as an aid to construction of the meaning of words’ "]).
Legislators declined to provide specific instances where the Court should find that "extraordinary circumstances" exist. ( Assembly Record , p. 39). Instead, they indicated that Judges "must look at all the circumstances of the case, as well as the circumstances of the young person" and that they should consider both "aggravating factors" and "mitigating circumstances" to determine if the People had established extraordinary circumstances. ( Assembly Record , pp. 39-40). The Court must deny the People's motion unless the People prove the existence of facts that are sufficiently exceptional and unusual to overcome the "presumption where only one out of 1,000 cases" remains in the Youth Part and is not removed to the Family Court. ( Assembly Record , pp. 37-38).
In this case, after reviewing the People's motion papers opposing removal, and considering defense counsel's arguments in opposition thereto, the Court finds that the People have sufficiently established that extraordinary circumstances exist which warrant retaining the AO's case in the Youth Part. The Court agrees with the People that the Criminal Possession of a Weapon charge filed against the AO is a serious and concerning charge. However, the Family Court is indisputably capable of presiding over cases involving charges that are equally or more serious and can impose serious strong and serious sanctions where they deem appropriate. The Court further notes that the People's motion papers lack allegations of sworn fact based upon an affiant's personal knowledge relating to the AO's alleged conduct in the current case, and the Court finds that they have failed to establish that the AO acted in a "cruel and heinous manner" in connection with the incident for which he is currently charged. Thus, the Court is not persuaded that this is a factor sufficient to retain this particular case in the Youth Part.
CPL § 722.23[1][b]
Assembly Record , pp. 40 and 85
On the other hand, as the People established in their Motion Opposing Removal, this Court is extensively familiar with this AO, having recently presided over his previous case where he was convicted (by plea) on an attempted murder charge for his involvement in a shootout that occurred in broad daylight and in which he exhibited a blatant disregard for the lives of others. This Court then afforded the AO considerable leniency when, rather than sentencing him to a period of incarceration as a Juvenile Offender, it vacated the conviction and replaced the same with a YO adjudication. The Court finds it particularly concerning that, after the AO was afforded such leniency and was given the benefit of the doubt, he was arrested again for a gun possession charge while he was on parole. The Court finds that the People have proffered "strong proof" that the AO is not "amenable" to and/or may not "benefit from" the heightened services and rehabilitative efforts available in the Family Court, considering his recent previous history in this Court and his apparent disregard for the Court's previous willingness to afford him considerable leniency. The Court finds the AO's conduct in this regard to be a substantial aggravating factor.
Assembly Record , p. 39
Defense counsel cites to two mitigating circumstances for the Court's consideration, including that the AO's father has been incarcerated since 2015 on a fifteen-year sentence and that the AO's family has received government assistance. Those mitigating factors are certainly relevant to the Court's determination, but the Court finds that in this case, the brief mention of such factors is outweighed by this particular AO's prior and recent history in this Court and his apparent disregard of this Court previously affording him leniency and the benefit of the doubt.
Additionally, the Court finds that defense counsel's reliance on People v. M.M. , 64 Misc 3d 259 [Nassau County Ct. 2019], is misplaced. The facts in People v. M.M. are distinguishable from those in this case, including that, in People v. M.M. , the People sought to use the AO's prior juvenile delinquency history as evidence against the removal of his case, in violation of FCA § 381.2 . The Court is not aware of any argument raised by the People that this AO's case should be retained in the Youth Part due to any juvenile delinquency history.
FCA § 381.2 prohibits a person's prior history as a respondent in a juvenile delinquency proceeding, including any past juvenile delinquency adjudications, from being used in any other court as evidence against that person or against his interests.
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The Court is further mindful of defense counsel's arguments relating to the sufficiency of the People's papers and the People's alleged improper use of their Reply papers to cure deficiencies in their initial motion papers. First, the Court does not find that the People's failure to indicate whether they are requesting a hearing constitutes grounds to deny their Motion Opposing Removal. ( CPL § 722.23[1][b] ). Instead, such failure more likely forecloses the People from requesting a hearing on their Motion at a later date. ( See, e.g. , People v. J.B. , 63 Misc 3d 424, 428 [Westchester County Ct 2019] [The People were not entitled to a hearing that was requested at a conference after the filing of their motion papers, since they did not request the hearing in their motion and their request was not made within thirty days of the AO's arraignment]).
Additionally, while defense counsel correctly points out that CPL 722.23 requires the People's Motion Opposing Removal to "contain allegations of sworn fact based upon personal knowledge of the affiant", ADA Murphy clarifies in his Reply papers that the allegations pertaining to the AO's prior history in this Court, including those surrounding his plea and the subsequent sentence, are based on ADA Murphy's personal knowledge. "The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion." ( Wells Fargo Bank, N.A. v. Marchione , 69 AD3d 204, 207 [2d Dept 2009] ). The Court finds that ADA Murphy's use of his reply papers to respond to arguments raised by defense counsel in his opposition papers and to clarify that he has personal knowledge about certain factual allegations was not improper. However, ADA Murphy improperly included new exhibits in his reply papers, and the Court has not considered those exhibits in deciding this motion. ( Osborne v. Zornberg , 16 AD3d 643, 645 [2d Dept 2005] ).
Under the totality of the circumstances, after having balanced the aggravating and mitigating factors concerning this case and concerning this individual youth [ see, e.g. , People v. B.H. , 63 Misc 3d 244, 250 (Sup Ct Nassau County 2019) ], the Court finds that the People have established "extraordinary circumstances" which warrant retaining this case in the Youth Part. The People's Motion Opposing Removal to the Family Court is granted, and this case shall remain in the Youth Part for all future proceedings.
This constitutes the opinion, decision and order of this Court.