Opinion
FYC-xxxxx-xx/xxx
04-30-2019
The PEOPLE of the State of New York, v. M.M., Adolescent Offender.
N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County, Jenna Suppon, Esq. Hon. Madeline Singas, Nassau County District Attorney, Heather Kalachman, Esq.
N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County,
Jenna Suppon, Esq.
Hon. Madeline Singas, Nassau County District Attorney,
Heather Kalachman, Esq.
Conrad D. Singer, J.The defendant in these matters, M.M. (D.O.B. 06/18/02) is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. On March 26, 2019 the People moved by Order to Show Cause seeking an Order pursuant to CPL § 722.23(1) determining that these matters will not be removed from the Youth Part to the Family Court in Nassau County due to the existence of "extraordinary circumstances". ( CPL § 722.23[1][d] ). The AO, through his counsel, filed opposition to the People's motion. On April 22, 2019, the People filed an Affirmation in Reply and on April 23, 2019, the AO, through his counsel, filed an Affirmation in Sur-Reply.The People's motion is determined as follows:
The AO is charged by way of a first felony complaint (Docket No. FYC- xxxxx-xx/xxx) with one count of Robbery in the Third Degree ( Penal Law § 160.05 ), a class D Felony; by way of a second felony complaint (Docket No. FYC- xxxxx-xx/xxx) with one count of Robbery in the First Degree ( Penal Law § 160.15[3] ), a class B Felony; by way of a third felony complaint (Docket No. FYC- xxxxx-xx/xxx) with one count of Robbery in the First Degree ( Penal Law § 160.15[3] ), a class B Felony; and by way of a fourth felony complaint (Docket No. FYC- xxxxx-xx/xxx) with one count of Robbery in the First Degree ( Penal Law § 160.15[4] ), a class B Felony.
The charges filed against the AO arise from four separate incidents alleged to have taken place on January 6, 2019, January 13, 2019, January 25, 2019 and February 25, 2019, respectively. The AO was arrested on February 28, 2019 and on March 1, 2019 in the Youth Part of the County Court, Nassau. At the arraignment, the Court placed bail on the AO and issued Temporary Orders of Protection which required him to stay away from each of the victims involved in his cases.
On March 7, 2019, the Court conducted an appearance/hearing pursuant to CPL § 722.23(2)(a) to review the accusatory instruments and other relevant facts and determine if the People proved the presence of certain factors enumerated under CPL § 722.23(2)(c), including, as relevant to these cases, whether the AO "displayed" a firearm or "deadly weapon" in furtherance of the charged offenses, such that the matters under docket numbers FYC- xxxxx-xx/xxx; FYC- xxxxx-xx/xxx; and/or FYC- xxxxx-xx/xxx would be disqualified from automatic removal to Family Court pursuant to CPL § 722.23(2)(c) . By Corrected Decision and Order dated April 16, 2019, this Court held that the People failed to prove by a preponderance of the evidence that the AO "displayed" a firearm or "deadly weapon" in furtherance of any of the offenses for which he has been charged, and that the four pending matters filed against the AO would all proceed toward automatic removal to Family Court absent a motion by the People to prevent removal pursuant to CPL § 722.23(1).On March 26, 2019, the People filed such a motion and in it they argue that extraordinary circumstances exist that should prevent the transfer of these actions to the Family Court, Nassau County, pursuant to CPL § 722.23(1)(d). They argue that the extraordinary circumstances requiring the AO's cases to remain in the Youth Part include his "extensive contacts" with the criminal justice system dating back to 2014, which have resulted in one prior felony conviction and four prior misdemeanor convictions as a juvenile delinquent. (Affirmation of Heath L. Kalachman, Esq. , dated March 26, 2019 [Kalachman Aff. ], ¶ 5). They argue that prior intervention by the Court, including sentencing the AO to probation and releasing him to the custody of the Office of Children and Family Services, has done nothing to curtail the AO's behaviors. (Kalachman Aff. , ¶ 5).
The People further argue that the "indicia of premeditation and planning" in the AO's commission of each of the offenses, the seriousness of the crimes with which he has been charged, and his role as the sole participant in the offenses are all additional extraordinary circumstances. (Kalachman Aff. , ¶ 5). The final two extraordinary circumstances cited by the People are the impact of a removal to the Family Court on the public's confidence in the criminal justice system, and the impact of removal on the safety and welfare of the community. Attached to the People's motion are the felony complaints and the supporting depositions of the complainants in each of the pending offenses.
In opposition to the People's motion, defense counsel argues that the pending matters against the AO must all be removed to the Family Court because the People have failed to prove the existence of extraordinary circumstances. (Affirmation of Jenna Suppon, Esq. , dated April 16, 2019 [Suppon Aff. in Opp. ], p. 2). Defense counsel further argues that the Court should reject the People's arguments relating to the AO's prior juvenile delinquency history, because not only did the People improperly obtain his protected family court records without court approval in violation of Family Court Act ["FCA"] § 166, but also because their reliance on such delinquency records violates FCA § 381.2, which specifically prohibits the use of prior delinquency records in other courts. (Suppon Aff. in Opp. , p. 4). Defense counsel further argues that, even if the Court were to consider the AO's prior Family Court juvenile delinquency proceedings, the People have still failed to set forth extraordinary circumstances as they have failed to prove the existence of "highly unusual and heinous facts" and failed to prove that the AO is not amenable or would not benefit in any way from the heightened services in the Family Court. (Suppon Aff. in Opp. , pp. 6-7).
The People argue in their Reply that they did not improperly obtain the AO's Family Court records, as the records were not sealed pursuant to FCA § 375.2 and are thus "merely ‘confidential' from the general public’ ". (Affirmation in Reply of Heather Kalachman, Esq. , dated April 22, 2019 ["Kalachman Reply Aff. "] ¶ 4. They argue that they properly accessed the AO's records from the County Attorney's Office, their prosecutorial counterpart in the Family Court, and that FCA § 166 specifically does not encompass police or prosecution records. (Kalachman Reply Aff. , ¶ 5). The People further argue that they are not in violation of FCA § 381.2, as they have not sought to use the AO's prior juvenile delinquency findings as evidence against him in a fact-finding proceeding, as contemplated under the statute, but are instead asking the Court to consider the prior findings only at this early stage, where the Court is tasked with making a delicate determination as to whether extraordinary circumstances exist such that his case should not be removed to the Family Court. (Kalachman Reply Aff. , ¶ 8).
The AO's Sur-Reply consists of an affirmation from his counsel, in which defense counsel argues that the People's argument distinguishing "sealed" records from confidential records is irrelevant as the AO has never asserted that his Family Court records were sealed. (Affirmation in Sur-Reply of Jenna Suppon , dated April 23, 2019 ["Suppon Aff. in Sur-Reply"], p. 2). Defense counsel further argues that although the Court has the power to permit inspection of Family Court records in an appropriate case, access to such records is by no means automatic and the practice commentaries to FCA § 166 further establish that the People were required to obtain court approval before accessing the subject records. (Suppon Aff. in Sur-Reply , p. 4).
Defense counsel disputes the People's contention that the use of the AO's juvenile delinquency records is proper because they are not being used against the AO as evidence in a fact-finding; defense counsel argues that the statutory language in FCA § 381.2 does not limit its applicability to fact-finding proceedings, hearings or trials. (Suppon Aff. in Sur-Reply , p. 7). Counsel further argues that the one exception to FCA § 381.2's prohibition against use of the juvenile delinquency records in another court is set forth at FCA § 381.2[2], and that is for use by another court when sentencing an adult after conviction, a situation that is "not at all comparable to the present situation". (Suppon Aff. in Sur-Reply , p. 8).
FACTUAL ALLEGATIONS
FYC - xxxxx-xx/xxx
The felony complaint alleges that on January 6, 2019, at approximately 3:30 PM, the AO reported to a location in Lakeview, Nassau County, based upon a meeting location that he and the complainant had agreed upon on Facebook. It is further alleged that the AO and the complainant had a social media conversation about the sale of the complainant's headphones to the AO for $ 300.00 and that in this conversation the AO disguised himself under the screen name of "T.B.". Furthermore, it is alleged that at the subject location, the AO approached the complainant and after confirming that she was the person selling the headphones, he showed the complainant money as a good faith transaction. The AO then put the monies back in his pocket and then forcibly removed the headphones from the complainant's hand, pushed her to the floor and fled with the headphones.
The supporting deposition of the complainant further alleges that the complainant arrived at the meeting spot a little early and messaged "T.B." that she was at the meeting place. A minute later a heavyset male, seventeen or eighteen years old, approximately 6-foot tall, arrived, and he confirmed that she was the person selling the headphones. He then started questioning her about whether she had a receipt for the headphones and the complainant realized that something was not right. She started backing away and he then took the headphones out of her hand and shoved her to the ground. He ran off in an unknown direction. (Exhibit 2 to Kalachman Aff. ).
FYC- xxxxx-xx/xxx
It is alleged in the felony complaint that on January 13, 2019, at approximately 9:13 PM, the AO lured the complainant to the place of occurrence in Rockville Centre, Nassau County, with the promise of buying the complainant's iPhone cell phone. While in front of the subject location, the AO took the cell phone from the complainant's hand without making any payment and when the complainant attempted to regain his property, the AO stated "[s]tep back or I'll boom you", while reaching into his waistband. The complainant was caused to fear for his life and the AO then ran from the place of occurrence with the complainant's cell phone.
Additional factual allegations were presented by the People at the sixth-day appearance/hearing, in that supporting depositions from the complainant and an additional eye-witness indicated that they both saw the AO reach toward his waistband, and that they believed he had a gun and feared for their safety. The People also stated that the AO's video-taped statement of admission did not include a reference to a gun.
The complainant's supporting deposition attached to the People's motion papers sets forth additional factual allegations, including that the complainant had been communicating on Facebook with a "T.B." about selling her iPhone cell phone and that her iPhone cell phone was stolen by a light-skinned black male, who was about 6-foot tall, with a thin build and who told her that he was "T.Bs" boyfriend. (Exhibit 2 to Kalachman Aff. )
FYC- xxxxx-xx/xxx
The felony complaint alleges that on January 25, 2019 at about 9:00 PM, in Lakeview, Nassau County, the AO lured the complainant via social media to the Lakeview Public Library with the promise of buying her gold rope necklace and her silver necklace. The AO allegedly got into the complainant's vehicle without her consent while placing his hand in his pocket as if he had a handgun and demanded that she drive. The complainant, in fear for her safety, stopped her vehicle and jumped out, screaming for help.
The complainant's supporting deposition attached to the People's motion papers further provides that the perpetrator communicated with the complainant under the name of "T.B.", and that before their meeting he changed plans via social media so that they would meet at the Lakeview Public Library and so that "E.", T.'s boyfriend, would be meeting the complainant. It is further alleged that the perpetrator purported to negotiate with the complainant over the price of the jewelry for ten minutes and that he showed the complainant cash and requested change from her. When the complainant went to her car to make change, the perpetrator entered the passenger side and commanded her to drive. He demanded the complainant's wallet, removed $ 60.00 and when he demanded that she unlock her cell phone, the complainant stopped the car, got out and started screaming. (Exhibit 2 to Kalachman Aff. ).
FYC- xxxxx-xx/xxx
It is alleged in the felony complaint that on or about February 25, 2019, at about 6:50 PM in Roosevelt, Nassau County, the AO lured the complainant via social media to the place of occurrence with the promise of buying her iPhone cell phone and that while in the yard of the said location, the AO took the cell phone from the complainant's hand. When the complainant attempted to regain her property, the AO displayed a black handgun and said to her "[y]o I got a glock on me, don't fuck with me, I will shoot you right now". The AO then ran from the place of occurrence with the victim's cell phone. Additional factual allegations presented by the People at the sixth-day appearance included the fact that in the AO's videotaped statement of admission he admitted to acting as if he had a gun and to referencing a "Glock", but he denied actually having a gun.
The supporting deposition attached to the People's moving papers include the additional factual allegations that the perpetrator communicated with the complainant in that case under the Facebook name "C M.". (Exhibit 2 to Kalachman Aff. ).
CONCLUSIONS OF LAW
The People's motion to prevent removal of the AO's cases is filed pursuant to CPL § 722.23(1), which expresses a clear statutory preference in favor of removal, as it requires the Court to deny the People's motion unless the Court determines upon their motion that "extraordinary circumstances" exist that should prevent the removal of the matters to Family Court. ( CPL § 722.23[1][d] ["The court shall deny the motion to prevent removal "]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2018 Electronic Update, CPL § 722.10 ).
I. STATUTORY MEANING OF "EXTRAORDINARY CIRCUMSTANCES" AS USED IN CPL § 722.23(1)(d)
The term "extraordinary circumstances" is not defined under CPL § 722.23. Thus, to determine whether the People have proven the existence of "extraordinary circumstances", the Court must "ascertain the legislative intent and construe the pertinent statutes to effectuate that intent". ( People v. Roberts , 31 N.Y.3d 406, 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 [2018] [citing In re M.B. , 6 N.Y.3d 437, 447, 813 N.Y.S.2d 349, 846 N.E.2d 794 [2006] ). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof". ( Roberts , supra , 31 N.Y.3d at 418, 79 N.Y.S.3d 597, 104 N.E.3d 701 [citing People v. Golo , 26 N.Y.3d 358, 361, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015] ). In doing so, the Court looks to the dictionary definition of "extraordinary" as a "useful guidepost" in determining the meaning of "extraordinary circumstances". ( People v. Andujar , 30 N.Y.3d 160, 163, 66 N.Y.S.3d 151, 88 N.E.3d 309 [2017] ; People v. Ocasio , 28 N.Y.3d 178, 181, 43 N.Y.S.3d 228, 65 N.E.3d 1263 [2016] ). Merriam-Webster defines "extraordinary" as "going beyond what is usual, regular, or customary", and "exceptional to a very marked extent". (see Merriam-Webster Online Dictionary, display [https://www.merriam-webster.com/dictionary/extraordinary] ). Black's Law Dictionary defines the term "extraordinary circumstances" as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event". (10th ed. 2014).
Thus, under CPL § 722.23(1)(d), the Court is required to deny the People's motion, unless the People prove the existence of facts that should prevent removal of the cases and which are "exceptional to a very marked extent", and "beyond what is usual, regular or customary". The Court finds further guidance on the legislative intent from the legislative history of the RTA legislation. ( Roberts , supra , 31 N.Y.3d at 423, 79 N.Y.S.3d 597, 104 N.E.3d 701 ; see also Andujar , supra , 30 N.Y.3d at 166, 66 N.Y.S.3d 151, 88 N.E.3d 309 ["While ‘the words of the statute are the best evidence of the Legislature's intent,' legislative history may also be relevant as an aid to construction of the meaning of words’ "] ).
Consistent with the interpretation of "extraordinary circumstances" as facts that are highly "exceptional" and "beyond what is usual or customary", the legislative history reveals that many of the legislators who worked on the RTA bill wanted all cases involving sixteen and seventeen-year-olds to be filed and heard in the Family Court and that the mechanism for having felony cases start in the Youth Part (subject to removal to Family Court) was part of a compromise to reach agreement on the legislation. (Assembly, Record of Proceedings, April 8, 2017, pp. 37). The mechanism for removal of an AO's case under CPL § 722.23(1)(d) therefore evinces the legislators' intent that "in the overwhelming bulk of the cases" the matter would be "promptly transferred from the adult court to the family court". (Assembly, Record of Proceedings, April 8, 2017, pp. 37).Thus, in determining whether to grant the People's motion, the question is whether the People have proved that the circumstances in this AO's case are so exceptional and beyond what is "usual" to overcome the "presumption where only one out of 1,000 cases those extremely rare and exceptional cases" would remain in the Youth Part and not be removed to the Family Court. (Assembly, Record of Proceedings, April 8, 2017, pp. 37-38).
II. CONSIDERATION OF THE AO'S PAST JUVENILE DELINQUENCY HISTORY AND RECORDS
A significant portion of the People's argument against removal is rooted in the AO's juvenile delinquency history, including his past admissions, statements, convictions and subsequent placement under the jurisdiction of the Office of Children and Family Services. Indeed, the People's arguments relating to the impact of removal "upon the confidence of the public in the criminal justice system" and the impact of removal "on the safety and welfare of the community" are grounded on the idea that the AO's juvenile delinquency history establishes that the Family Court remedies are ineffective to rehabilitate the AO and prevent him from engaging in further criminal activity.
Regarding whether the People improperly obtained the AO's juvenile delinquency records without first obtaining court approval pursuant to FCA § 166, the People argue that they gained access to such records from the Nassau County Attorney's Office, their prosecutorial counterpart in the Family Court, and that such access was not improper. The Court finds that it is unclear whether the People were required to seek court approval to review the AO's confidential Family Court records- while FCA § 166 indicates that court approval is necessary to inspect Family Court papers or records, the Court notes that FCA § 166 does not address the inspection and review of the AO's file maintained by the Nassau County Attorney's Office. ( FCA § 166 ).
In contrast, FCA § 375.1, which governs the sealing of a respondent's records when a delinquency action is terminated in the respondent's favor, specifically addresses the sealing of "all official records and papers relating to the arrest, the prosecution and the probation service proceedings on file with the court, police agency, probation service and presentment agency and not made available to any person or public or private agency". ( FCA § 375.1 ; see also Prof. Merril Sobie, Practice Commentary, McKinney's Cons. Laws of N.Y., FCA § 166 [noting that the Article 3 provisions governing the sealing of juvenile delinquency records affords a "far greater degree of protection" than the confidentiality provision set forth at FCA § 166, and that sealing of records under Article 3 includes presentment agency files] ).
Assuming, however, that the People properly gained access to the AO's juvenile delinquency records, FCA § 381.2 requires the Court to nonetheless reject the People's arguments against removal of the AO's case to the extent that they are based on the AO's history of being adjudicated as a juvenile delinquent. Family Court Act § 381.2 expressly prohibits the use of the AO's juvenile delinquency history, including his past adjudications, past admissions and statements to the court, against him or his interests in any other court. ( FCA § 381.2[1] ).
In Green v. Montgomery , 95 N.Y.2d 693, 697, 723 N.Y.S.2d 744, 746 N.E.2d 1036 [2001], the Court of Appeals cited to FCA § 381.2[1] for the proposition that "[a]s a rule, a juvenile delinquency adjudication cannot be used against the juvenile in any other court for any other purpose". ( Green , supra , 95 N.Y.2d 693 at 697, 723 N.Y.S.2d 744, 746 N.E.2d 1036 ; FCA § 381.2[1] ; see also People v. Campbell , 98 A.D.3d 5, 12, 946 N.Y.S.2d 587 [2d Dept. 2012], leave to appeal denied , 20 N.Y.3d 853, 2012 WL 6116677 [2012] [holding that the trial court erred in considering the defendant's adjudication as a juvenile delinquent in determining his appropriate risk level designation under the Sex Offender Registration Act ["SORA"]; People v. Francis , 137 A.D.3d 91, 95, 25 N.Y.S.3d 221 [2d Dept. 2016] ). The rationale behind FCA § 381.2 is that "[d]elinquency proceedings are designed not just to punish the malefactor but also to extinguish the causes of juvenile delinquency through rehabilitation and treatment". ( Green , supra , 95 N.Y.2d 693 at 697-698, 723 N.Y.S.2d 744, 746 N.E.2d 1036 ). To that end, a juvenile delinquency adjudication "cannot constitute a criminal conviction", but "[r]ather, a Family Court adjudication is a civil proceeding, and its purpose is to ‘supervise and guide a troubled youth’ " ( Green , supra , 95 N.Y.2d 693 at 697-698, 723 N.Y.S.2d 744, 746 N.E.2d 1036 ).
Likewise, the Second Department has noted that the statutory language in FCA § 381.2[1] is "unambiguous and makes clear ‘that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction’ " ( Campbell , supra , 98 A.D.3d at 10, 946 N.Y.S.2d 587 [citations omitted] ).
Thus, the Court is bound by the express language of the statute, even if the AO's past juvenile delinquency history might objectively be considered relevant to the question of whether an AO's case should be removed from the Youth Part to the Family Court. ( Campbell , supra , 98 A.D.3d at 13, 946 N.Y.S.2d 587, ["Although we do not quarrel with the [New York State Board of Examiners of Sex Offenders'] finding that the age of an offender at the time of the offender's first sex offense is relevant to that offender's likelihood of re-offense and to the danger to public safety, the Board was without power to adopt a guideline which contravenes the clear legislative pronouncement set forth in [FCA] § 381.2"] ).
The Court is mindful that in People v. J.P. , 63 Misc.3d 635, 95 N.Y.S.3d 731 [Sup. Ct., Bronx County 2019], that court considered an AO's past juvenile delinquency history as one of several factors relevant to the determination of whether the People had demonstrated the existence of "extraordinary circumstances" that should prevent the removal of the AO's case to the Family Court. However, this Court is not persuaded to rely on the AO's juvenile delinquency records in this case for multiple reasons. First, because the court in J.P. did not address FCA § 381.2[1] in its decision, it is possible that the Bronx court was not aware of FCA § 381.2[1]'s prohibition against the use of juvenile delinquency records. Second, this Court, respectfully, is not bound by the decision of a justice of coordinate jurisdiction. ( State v. Rosado , 25 Misc. 3d 380, 416, 889 N.Y.S.2d 369 [Sup. Ct., Bronx County 2009] ; People v. Collins , 186 Misc. 2d 818, 820, 720 N.Y.S.2d 885 [Crim. Ct., Richmond County 2000], aff'd , 190 Misc. 2d 72, 735 N.Y.S.2d 912 [App. Term 2d Dept. 2001] ). Finally, this Court notes that even after taking into consideration the AO's juvenile delinquency history, the court in J.P. nonetheless found that the People had failed to demonstrate "extraordinary circumstances" and ordered that the AO's case be removed to the Family Court.
If the fact that an individual was previously adjudicated a juvenile delinquent is to be considered in assessing factors against him with respect to the potential removal of a case from the Youth Part to the Family Court, then such consideration must be specifically authorized by the Legislature, not by this Court. (See Campbell , supra , 98 A.D.3d at 13, 946 N.Y.S.2d 587 ). In fact, the legislators have expressly authorized one exception to FCA § 381.2's prohibition against the use of juvenile delinquency records in other courts which is inapplicable here, in that "another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court. ( FCA § 381.2[2] ). Thus, under the express terms of FCA § 381.2, the Court may not consider the AO's juvenile delinquency history, as extensive as it may be, as a factor weighed against the removal of these cases to the Family Court.
III. DETERMINATION OF WHETHER THE PEOPLE HAVE PROVED THE EXISTENCE OF "EXTRAORDINARY CIRCUMSTANCES" TO PREVENT REMOVAL
In this case, having determined that the AO's past juvenile delinquency history and records must be excluded from the query of whether the People have demonstrated the existence of "extraordinary circumstances", the remaining issue for the Court is whether the People have proved that the underlying facts of the four pending cases against this AO are so "extremely rare" and "exceptional" that this AO's case should be the "one out of 1,000 cases" that should remain in the Youth Part. (Assembly, Record of Proceedings, April 8, 2017, pp. 38). The Court finds that while the pending offenses are serious and the conduct with which the AO has been charged is highly troublesome and may certainly warrant considerable punishment and rehabilitative services, the conduct alleged does not rise to the level of "highly unusual and heinous facts" warranting the denial of removal to the Family Court. (Assembly, Record of Proceedings, April 8, 2017, p. 39).
The Court notes that in discussions held on the Assembly floor prior to the passage of the RTA legislation, legislators specifically refrained from providing any determinate standard for the term "extraordinary circumstances", and they specifically contemplated that the meaning of "extraordinary circumstances" would be "determined and shaped by a judge's ruling" after taking into consideration all of the circumstances in each case. (Assembly, Record of Proceedings, April 8, 2017, pp. 83). Assembly Member Joseph R. Lentol (D-Brooklyn), the main sponsor of the RTA bill, expressly rejected the notion that four robberies (such as what has allegedly occurred here) would automatically qualify as "extraordinary circumstances", and instead reiterated that judges should consider "guideposts" including whether the crime was committed in a "cruel and heinous manner" and whether the adolescent offender was a "ringleader" in concluding that extraordinary circumstances exist. (Assembly, Record of Proceedings, April 8, 2017, pp. 85). It was further stated that in determining whether there are extraordinary circumstances, judges should draw reference in a light most favorable to the juveniles before them. (Assembly, Record of Proceedings, April 8, 2017, p. 102).
In this case, there are no allegations that the AO caused any of the complainants to sustain any physical injuries; nor did he commit any alleged criminal sexual act. The People failed to prove that he displayed an actual "firearm" or "deadly weapon" in the commission of any of the offenses. His alleged conduct in committing the four offenses, while troublesome, does not rise to the level of "cruel and heinous" and does not prove that he would be unamenable to or would not benefit in any way from the heightened services offered by the Family Court. (Assembly, Record of Proceedings, April 8, 2017, p. 39). Likewise, the Court finds that the People's argument that the AO undertook a "leadership" role because he acted alone is misplaced. If the allegations are true, the AO acted alone and was not, in contrast, a "ringleader" who "threatened and coerced reluctant youths to participate in the crimes". (Assembly, Record of Proceedings, April 8, 2017, p. 40).
In total, the People did not successfully overcome the "very high bar" in proving that "extraordinary circumstances" exist that should prevent removal of these cases. (Assembly, Record of Proceedings, April 8, 2017, pp. 83). The Court finds that the People have failed to prove the existence of "extraordinary circumstances". The People's motion to prevent removal is denied in its entirety.
Accordingly, because the Court finds that the People have failed to prove the existence of "extraordinary circumstances" that should prevent removal of these cases, the matters under FYC- xxxxx-xx/xxx, FYC- xxxxx-xx/xxx, FYC- xxxxx-xx/xxx and FYC- xxxxx-xx/xxx are hereby removed to the Family Court pursuant to CPL§ 722.23(1). The AO is to appear before the Honorable Ellen Greenberg in the Family Court on May 6, 2019 at 9:00 AM, in accordance herewith.
This constitutes the opinion, decision and order of this Court.
The People conceded that there were no such statutory aggravated factors involved in the matter under Docket No. FYC- xxxxx-xx/xxx, such that the matter would proceed toward automatic removal under § 722.23(1)(a), absent a motion by the People to prevent removal .