The People of the State of New York v. AO (2023)

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 January 6, 2023; the Attorney Affirmation in Opposition by Gina Vallone, Esq., dated January 13, 2023; on behalf of AO J.K.; 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 December 7, 2022, AO J.K. and three co-defendants were arrested and charged with Criminal Possession of Stolen Property, Fifth Degree, a class C felony under Penal Law §§ 165.40 and Robbery in the Second Degree, PL § 160.10(a). Accessible Magistrate Savage arraigned AO J.K., released him on his own recognizance, and scheduled him for an appearance on December 8, 2022 in front of this Court.

On December 8, 2022, AO J.K. appeared in front of this Court and entered a plea of not guilty. This Court released AO J.K. on his own recognizance, and AO J.K. accepted voluntary probation services.

On December 13, 2022, this Court conducted a six-day reading. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c). The parties were ordered to proceed in accordance with CPL § 722.23(1). AO J.K.'s release was continued.

Findings of Fact

The following documents are attached to the People's Motion: Accusatory Instrument/ Complaints of Police Officer Armonde Badger, dated December 7, 2022; and Witness Statement of the Victim, dated December 7, 2022. According to these documents, on December 7, 2022, AO J.K. and his co-defendants were in the cafeteria of Bennett High School when they approached the Victim. They began pushing the Victim around, and one male pulled off his right shoe and took it. A different male, later identified as AO J.K., took off the Victim's left shoe. The shoes were later identified as "Jordans," with an approximate value of Five Hundred ($500.00) Dollars. AO J.K. and the co-defendants left the cafeteria with the Victim's shoes. The Victim witnessed one of the suspects put the shoes in a locker. The Victim notified the principal, who searched the locker identified by the Victim. The "Jordans" were inside the locker, and the locker was identified as belonging to AO J.K.

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.

This Court finds that extraordinary circumstances do not exist that should prevent the transfer of this action to Family Court. The People do not set out exceptional or highly unusual circumstances which indicate that this case should not be removed to Family Court. The People do not allege that AO J.K. led, threatened, or coerced other reluctant youth into committing the crimes before this Court. The People do not allege that AO J.K. committed a series of crimes. There was no property damage, as the shoes were recovered after the search of the locker. Additionally, no weapons were alleged to have been used in said attack, and no serious injuries were sustained because of this incident.

Defense counsel raised mitigating factors for this Court to consider. She states that AO J.K. participated in a "group attack" where he was not the leader of said group.

This Court must also determine whether AO J.K. is amenable to or would benefit in any way from the heightened services in Family Court. AO J.K. accepted voluntarily probation services at the beginning of this action. Further, there have been no allegations that AO J.K. has not followed the direction of his probation. Defense counsel confirms in her response that AO J.K. has been engaged in services and complaint with said services. This Court has no reason to believe that AO J.K. would not be amenable to further services of the Family Court.

The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. After reviewing the totality of this youth's circumstances, this Court finds that extraordinary circumstances do not exist. The People did not meet its burden to prevent removal of this action to Family Court. The matter shall be removed to Erie County Family Court.

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

SO ORDERED.

ENTER,

_____________________________________

HON. BRENDA M. FREEDMAN

Brenda M. Freedman, J.