PEOPLE v. J.B., Adolescent Offender. (2021)

The following papers were read on this motion:

People's Affirmation and Memorandum of Law Opposing Removal 1

Adolescent Offender's Answer to People's Motion Opposing Removal 2

The Adolescent Offender (“AO”), J.B. (D.O.B. 00/00/0000), is charged with one count of Attempted Assault in the Second Degree [Penal Law §§ 110.00/120.05(2)]; one count of Criminal Mischief in the Fourth Degree [Penal Law § 145.00(1)]; one count of Criminal Possession of a Weapon in the Fourth Degree [Penal Law § 265.01(2)]; and one count of Assault in the Third Degree [Penal Law § 120.00(1)]. The People have filed a motion pursuant to CPL § 722.23[1][b], opposing removal of the AO's case to the Family Court due to the existence of “extraordinary circumstances”. The AO has filed opposition papers to the People's motion. The People have not filed any reply papers in further support thereof. The People's Motion Opposing Removal Based on Extraordinary Circumstances [“Extraordinary Circumstances Motion”] is determined as follows:

The charges filed against the AO arise from an incident alleged to have occurred on May 6, 2021 between about 8:40 PM and 9:00 PM, in V.S., Nassau County, New York. It is alleged that the AO was part of an attack against Victim “1”, who emerged from the altercation uninjured. It is further alleged that Victim 1's parents intervened in the attack to come to their son's aid, and that one parent sustained a superficial laceration on their back and the other parent sustained a two-inch laceration to their hand. The AO was arrested on June 15, 2021 and was arraigned that same day in the Youth Part of the Nassau County Superior Court. The People waived the statutory “sixth-day appearance” and requested to file an Extraordinary Circumstances Motion opposing removal of the AO's case to the Family Court.

The People's Extraordinary Circumstances Motion consists of the sworn affirmation of Assistant District Attorney Andrew C. Tripodi, Esq., with accompanying Memorandum of Law and supporting exhibits appended thereto. The People argue that extraordinary circumstances exist which warrant retaining this AO's case in the Youth Part, in that: 1) the AO was the “ringleader” and planned the subject attack in which Victim Number 1 was the target; 2) the AO acted in an especially cruel and heinous manner; and 3) no mitigating circumstances are present that could weigh against retaining the case in the Youth Part. (People's Memorandum of Law in Support of Motion Opposing Removal [“Memo of Law in Support”], pp. 7, 9 and 10).

In support of their contention that the AO was the “ringleader” of the subject attack, the People cite to the Felony Complaint ¹ , the multiple supporting depositions of Victim “1” J.H.² , the supporting depositions of victims L.F. and G.W.³ and the AO's crime report ⁴ , and argue that the AO is the sole connection between the attackers and the victims. (Memo of Law in Support, pp. 7-8). They contend that the victims know the AO because he and the Victim J. have attended school together for the past several years and the AO has been bullying J. (Memo of Law in Support, p. 8). They argue that the AO and the other attackers targeted the Victim J. as evidenced by one of the attackers yelling out “are you J.?” before attacking him [Ex. 2 to Tripodi Aff. In Support]. They further contend that the AO was the first person to get out of the car and attack the Victim J. and that the other attackers joined in the altercation once the AO and the Victim J. went down to the ground fighting.

The People contend that the AO “acted in an especially cruel and heinous manner” in soliciting and directing the attack against the victims in that he was an accomplice to one of the other attackers who cut the Victim L.F.’s hand. (Memo of Law in Support, p. 9). The People assert that as a result of the attack, the Victim L.F. sustained a two-inch laceration to her hand, experienced substantial pain and received stitches at the hospital. (Memo of Law in Support, p. 9). They further contend that she has continued to experience pain as recently as June 21, 2021, her injury is still tender to the touch, and that she has a scar on her hand and will have to follow up with a hand specialist. (Memo of Law in Support, p. 9). They contend that her hand injury constitutes a “significant injury”. (Memo of Law in Support, p. 9).

The People contend that no mitigating circumstances are present in this case because there is no evidence that the AO's home life contributed to him orchestrating the subject attack. (Memo of Law in Support, p. 10).

Defense counsel argues in opposition to the People's motion that on the date of the subject incident the AO and the Victim J. ran into each other in the grocery store parking lot, that they engaged in a brief exchange and a physical scuffle ensued thereafter. (Affirmation of Sammy Sanchez, Esq., in Opposition to People's Extraordinary Circumstances Motion, dated July of 2021 [“Sanchez Aff. In Opp.”], ¶ 5). Defense counsel further argues that neither the victim J. nor the Victim W.G. saw the AO with a knife or a weapon, as evidenced by their sworn depositions. [Sanchez Aff. In Opp., ¶ 5). Defense counsel does not mention the Victim L.F.s or acknowledge the hand injury she sustained in the incident. Defense counsel argues that the AO has no prior criminal history, that he has no history of alcohol or substance abuse, and that he is an excellent student.

FINDINGS OF FACT

It is alleged in the Felony Complaint that on May 6, 2021 between about 8:40 PM and 9:00 PM, in V.S., Nassau County, New York, the AO exited a vehicle, approached Victim “1” J. and began striking him, causing no injuries. It is further alleged that two unknown male suspects exited the same vehicle and approached the AO and Victim Number 1. The Felony Complaint further alleges that Victims “2”, W.G., and “3”, L.F.s, ran to the aid of their son, Victim J., and intervened in the altercation in an attempt to protect Victim J. and to stop the altercation. It is further alleged that an unknown black male armed with a boxcutter in his hand joined the altercation to assist the AO and swung the boxcutter in a downward motion, striking Victim 2, W.G., and causing him to sustain a superficial laceration on his back, and striking Victim 3, L.F.s, on the left hand and causing her to sustain a two-inch laceration and suffer substantial pain. It is further alleged that Victim 3, L.F.s, informed law enforcement that the AO took out a knife and cut her pants in an attempt to cut her on the right upper thigh area.

Based on the additional facts asserted in the People's motion, as supported by the victims’ sworn statements provided to the police, on the subject date and at the subject location, the Victim J. was at the A. grocery store with his mother, Victim L.F., and stepfather, Victim W.G. (Affirmation of Andrew C. Tripodi, dated July 1, 2021 [“Tripodi Aff. In Support”], ¶¶ 3-4). The Victim J. was walking the shopping cart back towards the A. market when a vehicle pulled up in front of him and an unidentified individual asked, “[A]re you J.”? (Tripodi Aff. In Support, ¶ 5). The AO then exited the subject vehicle, approached and started punching the Victim J. (Tripodi Aff. In Support, ¶ 5).

The Victims L.F. and W.G. then attempted to stop the fight. (Tripodi Aff. In Support, ¶ 6). The Victim L.F. affirmed that she observed the AO with a boxcutter in his hand and he was pointing it at the Victim J., and that the AO swung the boxcutter and cut her pants. (Tripodi Aff. In Support, ¶ 7). It is further affirmed that another unapprehended individual also had a boxcutter and swung it at the Victim L.F., striking her left hand and causing her to sustain a two-inch laceration and substantial pain, and requiring her to seek medical attention at a hospital. (Tripodi Aff. In Support, ¶ 8). According to the People, the Victim L.F. continued to experience pain in her left hand as recently as June 21, 2021 (one month after the subject attack), she has a “V” shaped scar on her hand, and she is following up with a hand specialist. (Memo of Law in Support, p, 9). Victim W.G. was also slashed on his back with a box cutter. (Tripodi Aff. In Support, ¶ 9).

LEGAL CONCLUSIONS

CPL § 722.23(1)(d) requires the Court to deny the People's Extraordinary Circumstances Motion unless the People establish the existence of “extraordinary circumstances” which warrant retaining this case in the Youth Part. (CPL § 722.23[1][d]). 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]). After referring to the common dictionary definition ⁵ of the term “extraordinary”, the Court interprets “extraordinary circumstances” to mean that the People's Extraordinary Circumstances Motion must be denied unless they establish the existence of an “exceptional” set of facts which “go beyond” that which is “usual, regular or customary”⁶ and which warrant retaining the case in the Youth Part instead of removing it to the Family Court.

The Court finds further guidance on the legislative intent from the legislative history of the Raise the Age (“RTA”) legislation. (People v. Roberts, 31 NY3d at 423; see also People v. Andujar, 30 NY3d at 166). In a debate that preceded the passing of the RTA legislation, legislators expressed that they intended the “extraordinary circumstances” standard “to be determined and shaped by a judge's ruling after the enactment and effectiveness of [the RTA legislation]”; and that they intended the presiding judge to “take into consideration all the circumstances, including the mental capacity of the offending child”. (Assembly, Record of Proceedings, April 8, 2017 [“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” a particular case “passes the exceptional circumstances test”. (Assembly Record, pp. 83-84).

Consistent therewith, legislators directed that “[e]very 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 the exhibits included with the People's motion papers, the Court finds that “extraordinary circumstances” exist which warrant keeping this AO's case in the Youth Part.

The Court finds that the People have persuasively argued that the attackers targeted the victim J. and that the AO's preexisting history with J. was the impetus for the subject altercation. The AO's counsel acknowledges that the AO and the Victim J. know each other from school, and defense counsel has offered no evidence supporting his assertion that the AO and the Victim J. simply “ran into each other” and started fighting. In contrast, the People rely on several sworn statements from the victims which all support their contention that the attackers targeted the Victim J., including that they approached the Victim J. while they were in a vehicle, that someone asked, “[a]re you J.?”, and they then exited the vehicle to assault J. While the People presented no proof that the AO “coerced” or “threatened” the other attackers to participate in the altercation, they put forth sufficient proof to demonstrate that the AO exhibited a leadership role in the altercation, including that he was the first to jump out of the car, that he initiated the attack on J., and that it was his history with the Victim J. that prompted the attack.

The Court finds a further aggravating factor based on the injuries sustained by J.’s parents, who only intervened in the altercation to protect their son. The Court finds it notable that the AO's attorney discusses the sworn statements of the Victim J. and the Victim W.G., but defense counsel does not address the sworn statements from the Victim L.F., including the fact that she sustained a two-inch laceration to her hand from being slashed with a boxcutter and that she has continued to experience extended consequences from that injury in the months after the attack.

The Court finds that the AO's apparent lack of prior involvement in the criminal justice system is a mitigating factor. However, the Court has been presented with no other mitigating factors concerning this specific AO and/or his background or home life; examples of such factors discussed by legislators included substandard housing or other socio-economic difficulties, severe lack of a familial support system and/or other factors which could arguably weigh against retaining the case in the Youth Part and which might indicate that he could benefit from the heightened services available in the Family Court. In contrast, the AO's counsel asserts that the AO is an excellent student and appears to have a strong familial support system.

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)], including that the subject attack caused the victim J.’s mother to sustain a relatively significant injury to her hand, that there are extraordinary circumstances which warrant keeping this AO's case in the Youth Part through disposition.

Accordingly, the People's Extraordinary Circumstances Motion 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.

FOOTNOTES

1.   [Ex. 1 to Affirmation of Andrew C. Tripodi, dated July 1, 2021 (“Tripodi Aff. In Support”)];

2.   [Ex. 2 to Tripodi Aff. In Support]

3.   [Exhibits 3 and 4 to Tripodi Aff. In Support]

4.   [Ex. 5 to Tripodi Aff. In Support]

5.   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 could refer to the “dictionary definition” of a statutory term for a “useful guidepost” in construing that term.

6.   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).

Conrad D. Singer, J.