Opinion
Youth Part Ind. FYC-00000-00/000
04-28-2020
The PEOPLE of the State of New York, v. M.M.H., Adolescent Offender.
Meredith Bettenhauser, Esq., Attorney for the Adolescent Offender Hon. Madeline Singas, Nassau County District Attorney, Charles Dunn, Esq.
Meredith Bettenhauser, Esq., Attorney for the Adolescent Offender
Hon. Madeline Singas, Nassau County District Attorney, Charles Dunn, Esq.
Conrad D. Singer, J.
The Adolescent Offender ("AO"), M.M.H. (D.O.B. 00/00/2002), is charged with one count of Criminal Possession of a Weapon in the Second Degree [ Penal Law § 265.03(3) ], one count of Criminal Possession of a Weapon in the Third Degree [ Penal Law § 265.02(1) ], and one count of Criminal Possession of a Firearm [ Penal Law § 265.01-b ]. The People have filed a motion opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances". ( CPL § 722.23[1][b] ). The AO has filed opposition to the People's motion. The People did not file Reply papers. The People's Motion Opposing Removal is determined as follows:
The charges filed against the AO relate to an incident alleged to have taken place on February 22, 2020, at approximately 7:30 PM in H., Nassau County, New York. It is alleged that on that date and at that time, the AO was observed by law enforcement as placing a silver handgun near the rear tire of a parked vehicle and walking away. Relevant to the charge of Criminal Possession of a Weapon in the Third Degree [ Penal Law § 265.02(1) ], which requires a prior conviction of a crime, the AO was previously convicted of Attempted Assault in the First Degree on January 13, 2020.
The People's Motion Opposing Removal follows this Court's Decision and Order dated March 11, 2020, in which the Court found that the People had failed to satisfy their burden at the statutory "sixth-day appearance" [ CPL § 722.23(2)(c) ] of establishing the existence of at least one of three aggravating factors which would disqualify the AO's case from being removed to the Family Court. ( CPL § 722.23[2][c] ). The People thereafter filed the subject Motion Opposing Removal based on the existence of "extraordinary circumstances". ( CPL § 722.23[1][b] ).
The People's Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Charles Dunn, Esq., and supporting exhibits appended thereto. The People argue that "extraordinary circumstances" exist which should prevent the transfer of the AO's case to Family Court, including the AO's criminal history and character; the indicia of premeditation and planning in the commission of the AO's offense; the impact of a removal to the Family Court upon the public's confidence in the criminal justice system; and the impact of removal on the community's safety and welfare.
In opposition to the People's Motion Opposing Removal, the AO's counsel argues that extraordinary circumstances do not exist and that the AO's case should be removed to the Family Court. The AO's counsel objects to the People's reliance upon the AO's prior Family Court records, to the People's characterization of the allegations underlying the pending criminal charges against the AO as "facts", and to the People's "speculation" that the AO is a gang member. (Affirmation in Opposition of Meredith A. Bettenhauser, Esq. , dated April 10, 2020 ["Bettenhauser Aff. in Opp."], ¶¶ 6 through 9). She argues that the AO "is the exact person envisioned in" the recently enacted "Raise the Age" ["RTA"] Legislation. (Bettenhauser Aff. in Opp. , ¶ 10).
FINDINGS OF FACT
The People represent that, in addition to the AO's case pending in the Youth Part, the AO also has a pending criminal matter under indictment 0000X-0000. (Affirmation of Charles Dunn, Esq. , in Support of Motion Opposing Removal , dated 3/18/2020 ["Dunn Aff. in Support of Motion"], ¶ 1 and exhibits thereto).
The People represent that in that criminal case, on or about September 8, 2019, in H., Nassau County, New York, the AO, brandishing a screwdriver, and together with three others, attacked the victim. (Dunn Aff. in Support of Motion , ¶ 11). The AO and one other co-defendant caused the victim to suffer a wound to his right arm and to sustain significant bleeding. (Dunn Aff. in Support of Motion , ¶ 11). The People assert that the impetus for that crime was believed to be gang-motivated, as the AO is a self-admitted member of one of the gangs that is predominant in the area, and the victim was believed to be associated with a rival gang. (Dunn Aff. in Support of Motion , ¶¶ 8 and 11).
As that criminal act occurred before final implementation of the RTA legislation, the AO is being prosecuted as an adult in that case; he is currently under indictment awaiting sentencing after pleading guilty to one count of Attempted Assault in the First Degree, a Class C Violent Felony. (Dunn Aff. in Support of Motion , ¶ 10). According to the People, the Judge in that case promised the AO that he would adjudicate him as a Youthful Offender ("YO"), but advised him that if he were to be re-arrested prior to sentencing, then the Court would revoke its commitment and he could be sentenced from 3.5 years to 15 years in upstate prison. (Dunn Aff. in Support of Motion , ¶ 10). The AO pleaded guilty in that prior case on or about January 13, 2020. (See Felony Complaint for FYC-00000-00/000).
The allegations in the felony complaints in this matter and the People's representations in their Motion Opposing Removal indicate that with respect to this case, on or about February 22, 2020, members of the Nassau County Police Department's Gang Investigation Squad were on patrol in an area of H. that is known to have gang activity. Specifically, the People represent that there have been several violent acts in the area, that such acts have been committed by or against known associates of the AO, and that some of the acts of violence have resulted in arrests and convictions. (Dunn Aff. in Support of Motion , ¶ 9). It is alleged that at approximately 7:30 PM, a detective allegedly observed the AO place a silver handgun near the rear tire of a parked vehicle and walk away. (Dunn Aff. in Support of Motion , ¶ 4).
The detective then allegedly recovered a .380 caliber handgun with a loaded magazine from the area he had observed the AO place the firearm. (Dunn Aff. in Support of Motion , ¶ 4). It is further alleged that the AO subsequently stated to the detective that he had seen Detectives earlier and that he was preparing to run when he saw them return. (Dunn Aff. in Support of Motion , ¶ 5 and supporting exhibit). A test of the gun revealed that it was an operable weapon capable of firing a bullet or projectile. (Dunn Aff. in Support of Motion , ¶ 6 and supporting exhibit). The AO's counsel represents that further scientific testing was performed and the gun did not contain any DNA attributable to the AO. (Bettenhauser Aff. in Opp. , ¶ 6). The AO's counsel further represents that two other individuals were with the AO at the time the gun was allegedly disposed of. (Bettenhauser Aff. in Opp. , ¶ 6).
LEGAL CONCLUSIONS
The statutory procedural requirements for a Motion Opposing Removal based on "extraordinary circumstances" include, inter alia , that such motion "contain allegations of sworn fact based upon personal knowledge of the affiant". ( CPL § 722.23[1][b] ). The People's motion consists, inter alia , of the sworn affirmation of ADA Charles Dunn, Esq., which Mr. Dunn states is made upon his "personal knowledge" as well as "upon information and belief, the source of which" being his review of Nassau County District Attorney's Office records pertaining to the AO's current matter and his other pending criminal matter.
Exhibits attached to Mr. Dunn's sworn affirmation include, inter alia , copies of the underlying felony complaints in this matter, a copy of the indictment in the AO's other pending criminal case, copies of the felony complaints underlying the AO's other pending criminal case, as well as copies of police department reports and a copy of the operability report pertaining to the gun that was allegedly recovered from the AO in this case.
Likewise, the AO's opposition to the People's Motion Opposing Removal consists of the sworn affirmation of his attorney, Meredith A. Bettenhauser, Esq., which she states is made upon "information and belief", with the sources thereof consisting of, inter alia , conversations with her client and with the People, her files in this matter, independent investigations and the prior proceedings of this case.
CPL § 722.23[1][d] requires the Court to deny the People's motion "unless the Court makes a determination upon such motion that extraordinary circumstances exist that should prevent the transfer of the action to family court". ( CPL § 722.23[1][d] ).
The term "extraordinary circumstances" is not defined under CPL § 722.23. However, using the statutory text as "the starting point" to "ascertain and give effect to the intention of the Legislature" , the Court finds that the "plain meaning" of the phrase "extraordinary circumstances" is a set of facts that are "exceptional" and "highly unusual" and which indicate that the case should not be removed to the Family Court. (see CPL § 722.23[1][d] ; see also , People v. Andujar , 30 NY3d 160, 163 [2017] and People v. Ocasio , 28 NY3d 178, 181 [2016], for the proposition that dictionary definitions may provide "useful guideposts" for ascertaining "plain meaning" of statutory phrase; see also , Merriam-Webster Online Dictionary, "extraordinary " [https://www.merriam-webster.com/dictionary/extraordinary]; Black's Law Dictionary, "extraordinary circumstances ", [10th ed. 2014] ).
People v. Thomas , 33 NY3d 1, *5 [2019] ; see also People v. Roberts , 31 NY3d 406, 418 [2018] ).
The Court further notes that legislators debating the Raise the Age bill opined that the "extraordinary circumstances" standard would be satisfied 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". (Assembly Record , April 8, 2017, p. 39). The legislators specifically declined to provide firm examples of instances where a case would rise to the level of "extraordinary circumstances". (Assembly Record , April 8, 2017, p. 39). They advised, however, that in assessing whether the People have proven "extraordinary circumstances", the Judge should consider all the circumstances of the youth, including both aggravating and mitigating circumstances. (Assembly Record , April 8, 2017, pp. 39-40).
As a threshold matter, at this time the Court finds, contrary to the People's arguments relying upon the AO's Family Court history, that the Family Court Act ["FCA"] prohibits this Court from considering the AO's Family Court records and history when determining whether "extraordinary circumstances" exist . Consistent with the Court's position, Professor Merril Sobie opines that, absent an amendment of the FCA, an AO's Family Court history remains inadmissible at the "important initial" determination of whether "extraordinary circumstances" exist to prevent removal to the Family Court. (Practice Commentaries, Prof. Merril Sobie, 2019 FCA § 381.2 ).
see FCA § 381.2, which provides that, "[n]either the fact that a person was before the family court under [the juvenile delinquency] article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court".
However, even disregarding the AO's Family Court history and records, the Court finds that in this case the People have satisfied their burden to establish "extraordinary circumstances" which warrant retaining the AO's case in the Youth Part.
The Court has significant concerns regarding the undisputed representation by the People that when the AO pleaded guilty to a serious violent felony on January 13, 2020, the Court in that case specifically advised him that its commitment to give him a more lenient sentence was contingent on him not getting arrested again before sentencing. And yet, it appears that the AO wholly disregarded the Court's clear directive and its efforts to afford him with leniency, as he not only got arrested again, but even more troublesome, got arrested for a further serious crime involving allegations of possessing a deadly weapon. Based on the People's motion papers, it appears to this Court that the AO would not be amenable to the services provided in the Family Court and instead appears more likely to thwart efforts at rehabilitation. ( People v. A.T. , 63 Misc 3d 891, 895 [Fam. Ct. Erie Cty. 2019] ; see also , People v. A.G. , 62 Misc 3d 1210[A], *3 [Sup. Ct. Queens Cty. 2018] ).
Furthermore, while the Court is not making any determination as to the respondent's guilt or innocence with respect to the charges pending in this case, the Court is also concerned by the allegations of the AO's conduct in this case-specifically, that after being convicted of a violent felony assault which was allegedly gang-related, the AO was arrested a second time in an area that is known for gang activity and that he allegedly was in that area with an operable firearm, but he attempted to evade law enforcement by placing the gun behind a parked car.
While the AO appears to suggest that the Court should disregard such unproven allegations in making its "extraordinary circumstances" determination, legislators responsible for the RTA bill evidently contemplated that Courts would consider such allegations when making this critical initial determination. (See Assembly Record , April 8, 2017, p. 40 [stating examples of aggravating factors for the Court's consideration, including whether the defendant acted in "an especially cruel and heinous manner" or acted as "a ringleader who threatened and coerced reluctant youths to participate in the crimes"] ).
Additionally, while the Court has not considered the AO's Family Court history and records, the Court does consider Probation's representations about the AO's extensive history of school suspensions for behavioral problems on school grounds, representations as to his failure to take advantage of services offered by his former High School, and Probation's opinion that the AO's "father does not appear capable of properly supervising him as evidenced by [the AO's] repeated offenses, gang involvement, and drug use". (Probation Report dated February 24, 2020, attached as exhibit to Dunn Aff. in Support of Motion , ¶ 14). The Court finds that such factors further indicate that this AO may not be amenable to the services available in the Family Court.
Finally, the AO did not present to the Court any potential mitigating circumstances to offset the aggravating factors discussed above. Thus, the Court finds that, under the totality of the circumstances, the People have demonstrated "extraordinary circumstances" which warrant denying removal of this AO's case to the Family Court. The AO's case shall therefore remain in the Youth Part for all future proceedings.
This constitutes the opinion, decision and order of this Court.