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PEOPLE v. AO (2023)

Family Court, New York,

The PEOPLE of the State of New York v. D.J., AO.

Docket No. FYC-70555-23

Decided: May 02, 2023

David DeChellis, 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 to Prevent Removal to Family Court and Affirmation in Support of Motion to Prevent Removal to Family Court of David J. DeChellis, Esq. (Assistant District Attorney), dated April 21, 2023; the Attorney Affirmation in Opposition by Michael Cimasi, Esq., dated April 28, 2023, on behalf of AO D.J.; 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 22, 2023, AO D.J. was charged under FYC-70555-23 with one count of Robbery in the Second Degree, under Penal Law § 160.10(01) & 20.00; and two counts of Criminal Possession of Stolen Property in the Fourth Degree, under Penal Law § 165.45(02) & 20.00.

On February 23, 2022, Accessible Magistrate Phillip Dabney Jr. arraigned AO D.J. and set bail in the amount of $50,000.00 cash and $75,000.00 bond B/C/E.

On February 23, 2023, this Court arraigned AO D.J. and set nominal bail of $1.00 cash, 10% of $10.00 partially secured surety bond, $1.00 insurance company bail bond at Defense Counsel's request.

This Court held a six-day reading on February 27, 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).

On April 14, 2023, this Court released AO D.J. on his own recognizance at the request of Defense Counsel.

The People filed this Motion to Prevent Removal to Family Court on April 21, 2023. Defense Counsel filed an Attorney Affirmation in Opposition on April 28, 2023.

Findings of Fact

It is alleged that on February 22, 2023, AO D.J. approached a woman entering a grocery store, grabbed her by the shoulders, spun her around, and forcefully took her purse. AO D.J. then got into the passenger side of a black 2020 Kia Sportage SUV, and the vehicle fled the scene. The woman's purse contained her IPhone with a clear case, wallet, prescription sunglasses, her vehicle's key fob, $100.00 cash, credit cards, judicial identification, driver's license, lipstick, makeup and a brush. The Kia Sportage was previously reported stolen.

AO D.J. had five prior matters in Erie County Youth Part removed to Family Court starting in May 2022 and most recently in October 2022.

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.

The People argue that this case is exceptional because of AO D.J.’s history in Youth Part. This Court agrees. AO D.J. had five prior matters transferred from Youth Part to Family Court before the instant charges were filed. Several of the prior charges involve a stolen vehicle. AO D.J. has had the benefit of Family Court services since May 2022, and some of those services were likely intended to rehabilitate AO D.J.’s proclivity to commit crimes involving stolen vehicles. Despite having those services over approximately one year, AO D.J. has been rearrested on charges involving a robbery and a stolen vehicle. It is unlikely that AO D.J. would benefit from having yet another matter removed to Family Court. As this Court previously held, extraordinary circumstances exist where a youth shows disregard for this Court's leniency after multiple cases are removed to Family Court, and Family Court's rehabilitative services are unlikely to be of further benefit. See People v. J.K., 2023 NY Slip Op 50312(U) (Fam Ct, Apr. 7, 2023); People v. P.P., 2023 NY Slip Op 50324(U) (Fam Ct, Apr. 11, 2023); People v A.R., 2023 NY Slip Op 50369(U) (Fam Ct, Apr. 24, 2023).

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. AO D.J. has demonstrated that he is not amenable to and would not benefit from further rehabilitative efforts of Family Court. 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.


Brenda M. Freedman, J.

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PEOPLE v. AO (2023)

Docket No: Docket No. FYC-70555-23

Decided: May 02, 2023

Court: Family Court, New York,

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