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PEOPLE v. AO (2023)

Family Court, New York,

The PEOPLE of the State of New York, v. T.R., AO.

Docket No: FYC-73124-22/001

Decided: April 11, 2023

For the People: Joelle M. Marino, Esq. (Assistant District Attorney) For the Defendant: Giovanni Genovese, Esq.

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 March 28, 2023. Giovanni Genovese, Esq. filed an Attorney Affirmation in Opposition on behalf of AO T.R. on March 30, 2023. Oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

Procedural History

AO T.R. was charged under FYC-73124-22/001 with one count of Attempted Robbery in the First Degree, under Penal Law § 110/160.15(2).

On October 7, 2022, Accessible Magistrate Gary A. Wilson arraigned AO T.R. and his co-defendant and remanded them without bail. On October 11, 2022, this Court arraigned AO T.R. and released him on RUS with an ankle monitor and house arrest. This Court held a six-day reading on October 14, 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).

The People filed a Motion to Prevent Removal to Family Court on November 10, 2022. On November 29, 2022, counsel for AO T.R. filed an Affirmation in Opposition of the Motion to Prevent Removal. On November 30, 2022 the Court rendered a Decision to keep the matter in Youth Part.

On March 14, 2023, the Court re-opened the prior extraordinary circumstances motion based on newly discovered evidence in another matter pending against AO T.R. The prior six-day reading was revisited, and the People conceded that the reading was not met.

The People then filed this Motion to Prevent Removal to Family Court on March 28, 2023. The following documents are attached to the People's Motion: Accusatory Instruments; Supporting Deposition of M. R.; and Accusatory Instruments for FYC-73106-22.

Findings of Fact

On October 7, 2022, at about 4:06 PM, a male and two females approached Complainant M.R. at his parked vehicle. The male was later identified as AO T.R. One of the females was later identified as AO J.C. AO T.R. instructed Complainant M.R. to give him his key and told him, “We are going to rob your car, look she has a knife.” Complainant M.R. saw AO J.C. standing behind AO T.R. with an old folding knife in her hand. Complainant M.R. responded, “I don't have a key.” AO J.C. responded, “How do you start your car if you don't have a key.” Complainant M.R. saw the unidentified female try, but fail, to open the back door. AO T.R., AO J.C., and the unidentified female then left the scene. Complainant M.R. followed them and took their picture. The AOs were subsequently arrested.

On October 5, 2022, two days before the foregoing incident, AO T.R. was arrested for a similar offense. There, Complainant D.R. exited his home, entered his vehicle, and started his engine. An individual approached the passenger door, opened it, and said, “get out of your shit.” The individual then kicked Complainant D.R. in the face so hard that his head hit the car window and then pointed a small black handgun at Complainant D.R. Complainant D.R. exited his vehicle, dropped his keys on the ground, and scrambled to reenter his home. The aggressor then took off in Complainant D.R.’s vehicle, stopping only to pick up other youths. Officers on routine patrol later observed AO T.R. in the driver's seat of the stolen vehicle and a co-defendant in the front passenger seat. When police officers approached the stolen vehicle, AO T.R. and his co-defendant fled on foot, where they were apprehended, placed under arrest, and issued an appearance ticket. However, neither AO T.R. nor his co-defendant in that case were identified by the owner as having participated in the robbery. The People's motion to prevent removal to Family Court was denied.

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 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 [AO's] 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.

Although the charge against AO T.R. is a serious charge, the legislature did not include it when specifying charges that would remain in Youth Part. In their argument to establish extraordinary circumstances the People allege aggravating factors, namely that AO T.R. threatened violence and a weapon was displayed, along with the car theft. Further, the People allege that AO T.R. participated in two similar crimes over the course of three days, which the People allege meets the burden of “extraordinary circumstances.” Additionally, the People argue that the Defendant is not amenable to the heightened services of Family Court.

The alleged use of a weapon does make this crime more heinous than a mere car theft case. Counsel for AO T.R. raises the fact that his client was not in possession of the knife, and the alleged knife was never recovered from the scene as a mitigating factor. Further, no one was injured in this matter.

This Court must consider whether 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. Judicial notice is taken of AO T.R.’s Youth Part Court Reports, dated November 9, 2022, January 10, 2023, February 24, 2023, and March 14, 2023 in making this determination. The Court Report provides that AO T.R. reported to Probation as directed, maintained good communication with his Probation Officer, and has been attending school. This behavior demonstrates that AO T.R. is likely to benefit from the rehabilitative services provided in Family Court.

The People have not met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, taking into account the absence of mitigating factors and the finding of substantially aggravating factors, this Court finds that extraordinary circumstances do not exist, and this case will be removed to Family Court.

This constitutes the opinion, decision, and order of this Court.


Brenda M. Freedman, J.

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PEOPLE v. AO (2023)

Docket No: Docket No: FYC-73124-22/001

Decided: April 11, 2023

Court: Family Court, New York,

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