Opinion
FYC-70325-20/001
04-13-2021
The People of the State of New York, Plaintiff, v. S.J., Principal.
Danielle N. D'Abate (Assistant District Attorney) Giovanni Genovese, Esq. (Counsel for Adolescent Offender)
Danielle N. D'Abate (Assistant District Attorney) Giovanni Genovese, Esq. (Counsel for Adolescent Offender) Kevin M. Carter, 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 Supporting Affidavit of Danielle D'Abate, Esq. (Assistant District Attorney), dated March 23, 2021, the Affirmation of Giovanni Genovese, Esq., dated March 31, 2021, on behalf of the principal S.J., and oral argument having been held on April 7, 2021, and neither party requesting an evidentiary hearing, and due deliberation having been had, the Court finds the following:
Procedural History
This action was commenced on December 11, 2020, by way of Felony Complaint that charged S.J. with Escape in the First Degree, as defined by Penal Law § 205.15(2).
S.J. was born on June 28, 2003. It is alleged that S.J. committed the crime on December 11, 2020. S.J. was sixteen years old when the crime was alleged to have been committed. Thus, by law S.J. is considered an Adolescent Offender (hereinafter, "AO"). See CPL § 1.20(44).
AO was arraigned on December 11, 2020. On December 16, 2020, the Court determined the People could not meet the requirements of CPL § 722.23(2)(c). Thereafter, the People were ordered to proceed in accordance with CPL § 722.23(1).
The parties consented to extend the deadline for filing of the extraordinary circumstances motion due to Executive Order No. 202 issued by the Governor Andrew Cuomo on March 7, 2020.
On March 23, 2021, the People filed its extraordinary circumstances motion pursuant to CPL §722.23(1) to prevent removal to family court. Annexed to the People's motion is a Supporting Affidavit by Assistant District Attorney Danielle D'Abate (hereinafter, "Supporting Affidavit"). Attached to the Supporting Affidavit are copies of the Felony Complaint signed by Detective Scott R. Malec, Supporting Deposition of Lieutenant Gary May, dated December 11, 2020, Certified Transcript of Felony Hearing held on December 16, 2020, and Affidavit of First Assistant District Attorney Doreen Hoffmann, Esq., subscribed and sworn to on March 23, 2021.
Defense Counsel (hereinafter, "Counsel") filed an Affirmation in opposition to the People's motion to prevent removal on March 31, 2021. Extraordinary Circumstances Standards
Pursuant to CPL § 722.23(1)(a), the court shall order removal of the action to family court unless the district attorney makes a motion to prevent same within thirty calendar days of arraignment. In the event the People apply to prevent removal of the action, CPL § 722.23(1)(b) mandates that the application "contain allegations of sworn fact based upon personal knowledge of the affiant." In addition, every motion to prevent removal to family court must be denied unless the district attorney establishes the existence of "extraordinary circumstances". See CPL § 722.23(1)(d).
Raise the Age legislation ("RTA") does not define extraordinary circumstances. While there was detailed conversation during the legislative debate in the NYS Assembly, it is clear that extraordinary circumstances must be defined and determined on a case by case basis. One can infer from review of New York State Assembly Debate at 39 submitted in accordance with NY Assembly Debate on Assembly Bill A03009C, §1, part WWW, Apr. 8, 2017, that the legislative intent is for a definition to include facts which are unusual and heinous. The Court, in its discretion, should look for circumstances that go beyond what is regular and foreseeable in the normal course of events and there must be proof that the child is not amenable or would not benefit in any way from services. Id. at 39.
As articulated in People v. J.P., 63 Misc 3d 635 (2019), it is the legislative intent that the extraordinary circumstances requirement be "a high standard for the DA to meet. And under this bill, denials of transfer to the family court should be extremely rare Transfer to the family court should be denied only when highly unusual and heinous facts are proven and there is strong proof that the young person in not amenable or would not benefit in any way from the heightened services in the family court." See, NY Assembly Records-of Proceeding at 39 [April 8, 2017]. The presumption being that "only one out of 1,000 cases would remain in youth part and those would be the "extremely rare and exceptional" ones. Id. at 38.
The intent of RTA and the legislative discussion of 'extraordinary circumstances' directs the Court to factors and circumstances which should be considered in its determination. These factors and circumstances are deemed aggravating and mitigating respectively. With the aggravating factors making it more likely that the matter should not be removed and the mitigating circumstances making it more likely that the matter should be removed. Neither list is meant to be exhaustive, but rather to provide guidance as to the intent of the type of analysis the Court should engage in when determining the existence of extraordinary circumstances.
The aggravating factors the Court must consider are (1) whether the AO committed a series of crimes over a series of days, (2) whether the AO acted in an especially cruel and heinous manner, and (3) whether the AO was a leader of the criminal activity who had threatened or coerced other reluctant youth into committing the crimes before the court. Id. at 40.
The list of mitigating circumstances that the Court should consider that are meant to include a wide range of individual factors, are the youth's economic difficulties, substandard housing, poverty, difficulties in learning, educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavior models, and abuse of alcohol or controlled substances by the AO, be it family or peers. Id. at 40. Facts
The Felony Complaint serves as the basis for commencement of this action and charges AO with Escape in the 1st Degree, a Class D Felony. It is alleged that on December 11, 2020 at 9:55AM on Jefferson Avenue and East Ferry Street, in the City of Buffalo, New York, while in the custody of Niagara County Sheriff's Department, AO was being "transported to a dentist appointment." AO slipped out of his handcuffs and jumped out of the rear seat of the patrol vehicle. AO was later apprehended at 261 East Ferry Street, Buffalo, New York. The factual part of the instrument seems to support the elements of the alleged offense. While signed by Detective Scott R. Malec, it is undated, unsworn and made upon information and belief.
However, the Felony Complaint is accompanied by the Supporting Deposition of Lieutenant Gary May, who executed same upon personal knowledge and under penalty of perjury. Lieutenant May states that he was "transporting AO from a dentist appointment" at 1100 Main Street back to the East Ferry Detention Facility. While stopped at the intersection of Jefferson Avenue and East Ferry Street, AO opened the back door of the marked patrol vehicle and ran west on East Ferry Street. A pursuit of AO ensued, and AO was apprehended after a "good [S]amaritan" held him on the ground. Arguments
The People argue that extraordinary circumstances exist when this case is viewed in the totality of its circumstances. The People believe AO's behavior should be considered highly unusual when viewed in-light of the crimes for which he was held in custody. It is alleged that AO was previously charged in Niagara County which is adjacent to Erie County. It is these prior charges that the People believe makes this case extraordinary.
The People concede that the AO's conduct during the alleged escape in-itself would not amount to extraordinary circumstances because it is unlikely that the Court could conclude that AO's behavior was heinous in anyway. However, the People opine that the crimes for which AO is charged in the adjacent County of Niagara must be considered and cannot be disregarded when evaluating the application to prevent removal. According to the People the Court must consider the previously charged crimes because RTA mandate that the Court considers whether the principal committed a series of crimes over a series of days. Moreover, the People believe that the Court must consider the crimes for which AO escaped when deciding whether AO engaged in heinous behavior. Specifically, the crime of murder for which AO stands accused and from which the People argue he was escaping.
Counsel argues that the Court cannot consider any charges filed in the adjacent county because to do so would require consideration of hearsay statements which are not admissible under the statute. Counsel further argue that extraordinary circumstances do not exist because the charge of escape is a non-violent offense and it would be contrary to RTA to grant the People's application. Moreover, Counsel asserts the People failed to submit non-hearsay proof that AO has charges pending against him in Niagara County and therefore has failed to show a series of crimes over a series of days.
Counsel did not offer any mitigating circumstances for the Court's consideration. Analysis
It can be inferred from a review of New York State Assembly Debate at 20 submitted in accordance with NY Assembly Debate on Assembly Bill A03009C, §1, part WWW, Apr. 8, 2017, that the legislative intent is for the Court to determine first whether the specific charge for which the AO stands accused is a violent or non-violent offense. The legislation contemplates that non-violent charges will be removed long before extraordinary circumstances applications are required to be filed. While it is clear that non-violent charges will not be summarily removed simply because they are labeled non-violent, it can be inferred that only charges with "the truly violent felons would stay in the criminal part, and those kids who were not violent would be able to find their way to family court " Id. at 21.
This Court is forever mindful of the foregoing and concludes that it should look at each case in its totality while also considering the aggravating factors and mitigating circumstances. Id. at 39-40. In every motion to prevent removal the Court must look at the case and its own intricacies and nuances.
Here, the People concede that AO's conduct during the alleged escape does not in-itself amount to extraordinary circumstances. However, they raise the question whether the Court can consider and should consider previously charged crimes from other jurisdictions and the alleged behavior of a principal in committing those crimes when determining whether a principal engaged in heinous conduct. The People rely on People v. M.M.H., 2020 NY Slip Op 50563(U), decided on April 28, 2020 by Judge Conrad D. Singer, in support of its assertion that the Court has the authority to do so. In People v. M.M.H., the Principal was charged with several violent felony offenses involving weapons possession. Principal was also under the jurisdiction of another court on a pending indictment in which the Principal entered a plea of guilty, was released pending sentencing, and directed to lead a law-abiding life and not get arrested. That did not happen as Principal was subsequently arrested and charged with multiple weapons related offenses. Judge Singer held that the pending indicted charges and the judge's directive to the Principal to avoid future arrests were aggravating factors to be considered in determining whether extraordinary circumstances exist in the case before him. More specifically, Judge Singer opined that it showed that the Principal was not amenable to services.
However, the instant case can be distinguished from People v. M.M.H. First, AO is charged with a non-violent offense wherein there are no allegations that any harm or injury was perpetrated on anyone. Second, while there is a previously charged crime in another jurisdiction, there are no facts before this Court that AO was directed by the Niagara County judge to engage in services or otherwise. Third, AO was remanded to detention pending disposition of the case.
The Court agrees that it has the right to consider pending felony charges from another court and or additional charges pending before it. However, the People argue that the Court can and should impute the behavior associated with the pending charges from the other jurisdiction to the current escape charge. By doing so, the People assert, that the Court could find that AO engaged in a series of heinous crimes over a series of days that would satisfy the requirements of the statute.
Counsel argues that the Court cannot consider any of the charges filed in the adjacent county because to do so would require consideration of hearsay statements. The Court agrees with Counsel that only non-hearsay facts can be considered. As stated previously, that is the law as provided in CPL § 722.23(1)(b). The People rely on an undated and unworn Felony Complaint, Supporting Affidavit, Certified Transcript of the Felony Hearing, Supporting Deposition of Lieutenant Gary May, and an Affidavit of First Assistant District Attorney Doreen Hoffman. In reviewing the documents, the Court will only consider the non-hearsay content contained in those documents.
A review of the felony hearing transcript establishes that the Court took judicial notice without objection of AO's "criminal history charging him with murder in the second degree." See Transcript of Felony Hearing, Pg. 18, Ln. 6-12. No additional testimony was offered of other crimes during the felony hearing. Claims relative to other crimes and AO's conduct while committing those offenses were made upon information and belief. Thus, the Court will not consider them.
There is no question that AO is alleged to have committed a series of crimes over a series of days. A determination of whether AO committed a series of crimes over a series of days can include criminal activity from multiple counties. The People have satisfactorily shown that AO is accused of committing crimes in Erie and Niagara Counties.
There is little doubt that AO's behavior during the commission of the alleged murder in Niagara County was cruel and heinous since it resulted in someone's death. The question is whether it is the legislative intent to allow Courts to impute behavior from one crime to another that occurred on two totally separate occasions, at different times, and in different jurisdictions. For example, whether it is appropriate to superimpose the behavior associated with the murder charge in Niagara County to the subsequent Erie County escape charge in which AO allegedly jumped out of the rear seat of the marked patrol vehicle and ran before being apprehended.
It is the case that RTA requires consideration of certain aggravating factors but also allows contemplation of additional factors that were not discussed during the legislative debate. The People believe this is one of those additional undiscussed factors the Court could consider. However, the Court finds to superimpose AO's behavior during the alleged murder and merge or impute it onto the crime of escape to make a finding that AO's conduct during the escape was heinous is not supported by the RTA.
In addition to the foregoing, there is nothing in the record to suggest that AO was a leader of the criminal activity who threatened or coerced other reluctant youth into committing the crimes before the court.
Finally, AO did not offer any mitigating circumstances for the Court's consideration. However, the submitted aggravating factors are insufficient to make a finding of extraordinary circumstances. Therefore, a review of mitigating circumstances is not necessary here.
The Court concludes that extraordinary circumstances do not exist to prevent removal of this action to the family court. Hence, the matter shall be removed to Erie County Family Court.
So Ordered, Dated: April 13, 2021 Hon. Kevin M. Carter