Opinion
No. IND-71448-23/001
07-24-2023
The People of the State of New York v. S.G., AO.
Rachel L. Newton, Esq. (Assistant District Attorney) Kara Buscaglia, Esq. (for the Principal)
Unpublished Opinion
Rachel L. Newton, Esq. (Assistant District Attorney)
Kara Buscaglia, Esq. (for the Principal)
Brenda M. Freedman, J.
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 Affirmation of Rachel L. Newton, Esq. (Assistant District Attorney), dated June 30, 2023; the Affirmation in Opposition by Kara A. Buscaglia, Esq., dated July 14, 2023, on behalf of AO S.G.; oral argument and a hearing on the motion having been waived and due deliberation having been had, the Court finds the following:
Procedural History and Findings of Fact
On August 23, 2022, AO S.G. was charged with Grand Larceny in Niagara County. That matter was removed to Niagara County Family Court. In September 2022, after the resolution of the Family Court matter, AO S.G. was charged in the State of Iowa with Sexual Exploitation of a Minor and Purchased/Possession Depiction of a Minor in a Sex Act and Criminal Mischief/Theft. AO S.G. was extradited to Iowa, where he was prosecuted and eventually placed on Probation. In February 2023, AO S.G.'s probation was transferred to Erie County. His term of probation expired on April 10, 2023.
It is alleged that on April 25, 2023, at approximately 11:15 am, AO S.G. arrived at Buffalo Public School 131, also known as the Academy School, where he was a student. He placed his bookbag on a table/partition area to be searched by a school security officer and passed through the metal detector. When the security officer searched AO S.G.'s bag, he felt a magazine. He radioed the school principal and brought AO S.G. and his bookbag to the principal's office. The security officer reached in the bookbag to show the magazine to the principal. He felt the slide and frame of a gun concealed within a pair of jeans. AO S.G. was told to stay in the principal's office. The principal called 911, and the school went into lockdown. AO S.G. fled the school before police officers arrived. The Firearms Analysis Report provides that the firearm was operable. No serial number or defaced areas were observed on it; this, in connection with the firearm's physical attributes, indicate that the gun might not have been produced for commercial sale.
On May 5, 2023, a sealed indictment was filed in connection with AO S.G. and an indictment warrant was issued for his arrest.
On May 31, 2023, before the warrant was executed, police were called to a certain block in Niagara Falls, New York for two people fighting. During the investigation, AO S.G. was taken into custody to determine his role in that altercation. He was ultimately cleared of involvement in the fight; however, during the investigation, AO S.G. gave a false name. He was issued an appearance ticket returnable to the Niagara Falls Probation Department on June 7, 2023 for False Personation.
On June 7, 2023, AO S.G. was taken into custody on the indictment warrant issued a month before. The indictment was unsealed, and AO S.G. was arraigned on IND-71448-23/001, which alleges that he committed the crimes of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(03)), a class C felony; and Criminal Possession of a Weapon on School Grounds (Penal Law § 265.01-a), a class E felony. The People conceded that the allegations did not meet the requirements of CPL § 722.23(2)(c), and this Court ordered this action to proceed in accordance with CPL § 722.23(1). AO S.G. was remanded without bail.
On June 30, 2023, Rachel L. Newton Esq., on behalf of the People, filed a Notice of Motion requesting that the matter stay in the Youth Part. On July 14, 2023, attorney Kara A Buscaglia, Esq., on behalf of AO S.G., filed an Affirmation in Opposition to the motion.
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 N.Y.2d 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 facts of this case are concerning. The People do not allege that the weapon was used in furtherance of any crimes, and no one was harmed during this incident. However, the People argue that bringing a loaded and operable firearm into an educational setting is a cruel and heinous act. The People further allege that the only conclusion to draw from AO S.G. bringing this firearm, wrapped in a pair of jeans concealed in his bookbag, into his school is that AO S.G. intended to use the firearm. Due to the increasing number of mass shootings and student deaths in schools, this Court finds that AO S.G.'s alleged possession of a loaded and operable ghost gun on school grounds, which caused a school lockdown, is distinguishable from previous cases involving criminal possession of a weapon. The presence of security guards and metal detectors in schools such as School 131 is evidence of the severity of this concern. At the very least, AO S.G.'s actions portray a clear disregard for public alarm.
The People also argue that AO S.G.'s multiple social media posts on April 10, 2023, April 24, 2023, and April 28, 2023, showing him holding the illegal firearm establishes a series of crimes over multiple days. This Court declines to rely on these uncharged crimes to evince that aggravating factor.
This Court finds that AO S.G. would not further benefit from the heightened services offered in Family Court. AO S.G. has had multiple police contacts within the past two years, despite the benefits of Probation supervision. He is alleged to have committed this crime 15 days after his term of probation expired. AO S.G.'s worrisome decision to bring ammunition and an operable ghost gun into school during a time when student safety is a dire public concern demonstrates that he needs a higher level of care than Family Court will provide.
The People have met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, considering the mitigating and aggravating factors, this Court finds that extraordinary circumstances exist and warrant this case remain in the Youth Part.
This constitutes the opinion, decision, and order of this Court.
SO ORDERED.