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PEOPLE v. AO (2023)

Family Court, New York,

The PEOPLE of the State of New York v. P.P., AO.

Docket No. FYC-70588-23

Decided: April 11, 2023

Joelle M. Marino, Esq. (Assistant District Attorney) Michael Cimasi, Esq. (for the Defendant P.P.)

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 29, 2023. Michael Cimasi, Esq. filed an Attorney Affirmation in Opposition on behalf of AO P.P. on April 5, 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

On February 27, 2023 AO P.P. was charged under FYC-70587-23 with one count of Burglary in the Second Degree, under Penal Law § 140.25(2), one count of Conspiracy in the Fourth Degree, PL § 105.10(1), and one count of Petit Larceny, PL § 155.25. AO P.P. was also charged under FYC-70588-23 with one count of Grand Larceny in the Fourth Degree, PL § 155.30(4), and one count of Conspiracy in the Fifth Degree, PL § 105.05(1).

On February 27, 2023, this Court arraigned the AO and released him on RUS; the AO accepted voluntary probation services. This Court held a six-day reading on March 2, 2023. 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 this Motion to Prevent Removal to Family Court on March 29, 2023. The following documents are attached to the People's Motion: Accusatory Instruments; Supporting Depositions of A.S.; D.D.; and Detective Cruz.

Findings of Fact

On October 23, 2022, Victim A.S. woke up to realize that she had left her garage open at her residence, XX Curley Drive, Tonawanda, New York. After examination, she found that two (2) bicycles had been stolen out of her garage. After reviewing her security footage, the Victim observed three individuals entering her garage and taking both bicycles. Two of the suspects were wearing masks, while one was not. The unmasked suspect was described as a black male, wearing a bubble coat and glasses, with his hair in dreadlocks.

On October 25, 2022, Victim D.D. realized that his wallet had been stolen from his car, which was parked in the Town of Orchard Park. The door to his vehicle was ajar and unlocked upon inspection. Soon thereafter, Victim D.D. received a notification that there were suspicious charges on his credit card, coming from a 7-11 in the City of Buffalo. These charges were made on October 25, 2022 at approximately 3:30pm. Detective Cruz obtained video from the 7-11 on the date and time in question, and recognized one of the suspects using the stolen credit cards as AO P.P. In the surveillance video, AO P.P. was wearing the same bubble coat and glasses, and his hair was in dreadlocks. The same AO was identified as the maskless suspect in Victim A.S.’s security footage. AO P.P. was subsequently arrested.

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.

In their argument to establish extraordinary circumstances, the People allege aggravating factors, namely that AO P.P. is not amenable to services, along with the heinous and unusual nature of the crime(s). Further, the People allege that AO P.P. is a repeat offender, having had four (4) cases within the past year removed to Family Court, 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, as illustrated by AO P.P.’s continued criminal activity.

Defense counsel raised mitigating factors for this Court to consider. He states that AO P.P. has demonstrated that he is amenable to services, has appeared in Court when required, and has no prior criminal convictions.

Historically, AO P.P. has had eight (8) cases brought in the Youth Part, including the cases discussed herein. Five (5) of those cases were previously removed to Family Court starting in May, 2022 through February, 2023. Here, AO P.P. had three pending Youth Part matters, with one being removed prior to the People's Motion. The arrest in the instant matters occurred months after the five cases had been transferred to Family Court. The Defendant's numerous arrests following the transfer of these cases to Family Court clearly display that AO P.P. will not benefit from the heightened services in Family Court. A.O. P.P.’s conduct shows a complete disregard for the conditions of AO P.P.’s release and the prior leniency of the Court. Further, AO P.P. has had the benefit of the services of Family Court since May, 2022 and yet continues to commit crimes.

This matter bears similarity to People v B.D., 78 Misc 3d 1207(A) [Fam Ct 2023], where the youth in question was previously granted Youthful Offender status, only to get arrested again while on parole. In People v. B.D., (Id.) the Court found that, “with (AO's) previous history in their Court combined with his disregard for the Court's previous leniency was a substantial aggravating factor to keep the matter in Youth Part.” Here, AO P.P. was not previously adjudicated a Youthful Offender, but had multiple cases removed to Family Court within a short period of time.

In People v. J.K., 2023 NY Slip Op 50312(U), (Erie Co Fam. Ct, April 7, 2023) the Court balanced the aggravating and mitigating factors and found extraordinary circumstances, keeping the matter in Youth Part. The Court relied on AO J.K.’s history, as within a six-month time frame AO J.K. had eleven (11) cases brought in the Youth Part, with five (5) of those cases removed to Family Court. AO J.K. continued to get arrested, showing a disregard for the conditions of his release, the leniency of the Court, and proving that he is not amenable to the heightened services of Family Court.” Here, AO P.P. had multiple cases removed to Family Court and subsequently has been rearrested. Additionally, AO P.P. has a clear disregard for the Court's previous leniency, as he continues to commit crimes.

This Court has found that substantial aggravating factors exist here that support a determination to keep this matter in Youth Part including AO P.P.’s history, the volume of cases that AO P.P. has had in the past and continues to have in both Youth Part and Family Court, and his disregard for the Court's previous leniency. AO P.P.’s actions illustrate that he will not be amenable to the heightened services of Family Court. The mitigating factors outlined by Defense counsel were considered but are not so probative as to outweigh the aggravating factors found. As in People v. J.K., supra, AO P.P. has had a substantial Court history, and shows a blatant disregard for the Court's previous leniency.

The People have met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, considering the mitigating factors and the finding of substantially aggravating factors, this Court finds that extraordinary circumstances exist warranting this case remain in the Youth Part.

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-70588-23

Decided: April 11, 2023

Court: Family Court, New York,

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