PEOPLE v. AO (2023)

Family Court, New York,

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

Docket Nos. FYC-70553-23, FYC-70602-23, FYC-70606-23, FYC-70605-23, FYC-70716-23, FYC-70723-23

Decided: April 24, 2023

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

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 and Supporting Affidavit of Joelle M. Marino, Esq. (Assistant District Attorney), dated April 6, 2023; the Affirmation by Michael Cimasi, Esq., dated April 13, 2023, on behalf of AO A.R.; 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 A.R. is currently charged under multiple FYC dockets for alleged crimes that were committed on multiple days.

1. On FYC-70553-23 AO A.R. is charged with:

a. one count of Grand Larceny in the Fourth Degree, PL § 155.30(4), a class E Felony

b. one count of Unauthorized Use of a Vehicle, PL § 165.05(1), a class A Misdemeanor

c. one count of Attempted Petit Larceny, PL §§ 110.00/155.25, a class B Misdemeanor

d. one count of Attempted Identity Theft in the Third Degree, PL §§ 110.00/190.78(1), a class B Misdemeanor

2. On FYC-70602-23 AO A.R. is charged with:

a. one count of Grand Larceny in the Fourth Degree, PL § 155.30(4), a class E Felony

b. one count of Petit Larceny, PL § 155.25, a class A Misdemeanor

3. On FYC-70606-23 AO A.R. is charged with:

a. one count of Robbery in the Third Degree, PL § 160.05, a class D Felony

4. On FYC-70605-23 AO A.R. is charged with:

a. one count of Robbery in the Third Degree, PL § 160.05, a class D Felony

5. On FYC-70723-23 AO A.R. is charged with:

a. one count of Grand Larceny in the Fourth Degree, PL § 155.30(4), a class E Felony

6. On FYC-70716-23 AO A.R. is charged with:

a. one count of Grand Larceny in the Fourth Degree, PL § 155.30(4), a class E Felony

The People and defense counsel agreed to consolidate all pending matters into one motion agreement under CPL, Art. 722, § 722.23(1).

Findings of Fact

On January 16, 2023, AO A.R. is alleged to have stolen a debit card and a set of keys from a gym locker. It is further alleged that he used the keys to take a vehicle that he did not own to drive to a store and attempt to use the debit card he had stolen.

On February 4, 2023, AO A.R. is alleged to have stolen a purse from a woman in a grocery store parking lot.

On February 5, 2023, AO A.R. is alleged to have stolen a purse from a woman in a grocery store parking lot.

On February 16, 2023, AO A.R. is alleged to have stolen a purse from a woman and a wallet from a man in Target store.

On February 27, 2023, AO A.R. is alleged to have stolen two sets of keys from a gym locker. It is further alleged that he used one of the sets of keys to take a vehicle.

AO A.R. has had 3 prior matters in Erie County Youth part that were removed to Family Court. One of the matters the People consented and the other two this Court denied CPL, Art 722, § 722.23(1) motions to prevent removal that were filed by the People.

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 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.

This Court does find the matters at hand to be extraordinary. AO A.R. has demonstrated a blatant disregard for being amendable to services. As this Court has previously held, a youth with multiple prior matters having been removed to Family Court in conjunction with multiple pending charges stemming from separate incidents constitutes extraordinary circumstances. See Matter: People v. J.K. 185 NYS3d 658 [Erie Family Court, April 7, 2023] and People v. P.P., NY Slip Op 50324 [Erie County Family Court, April 11, 2023]. AO A.R. has had three prior cases removed to Family Court and yet is still currently facing charges from six separate incidents. Although defense counsel argues mitigating circumstances, AO A.R.’s clear unwillingness to appropriately engage with services while continuing to engage in prolific criminal activity is extraordinary.

The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. Extraordinary circumstances exist here, because the alleged incidents are of a highly unusual nature and this Court finds that AO A.R. is not amenable to services and was engaging in a “crime spree”. The People have met its burden to prevent removal of these actions to Family Court. These matters shall not be removed to Erie County Family Court.

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

SO ORDERED.

Brenda M. Freedman, J.