Opinion
Index No. FYC-00000-00
12-07-2021
The PEOPLE of the State of New York, v. C.J., Adolescent Offender.
N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County, Taryn Shechter, Esq. Acting Nassau County District Attorney, Joyce A. Smith Rivka Shuter, District Attorney Law Assistant
N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County,
Taryn Shechter, Esq.
Acting Nassau County District Attorney, Joyce A. Smith
Rivka Shuter, District Attorney Law Assistant
Conrad D. Singer, J.
The following papers were read on this motion:
People's Affirmation and Memorandum of Law Opposing Removal 1
Adolescent Offender's Opposition to People's Motion Opposing Removal 2
The Adolescent Offender ("AO"), C.J. [D.O.B. X/XX/XXXX], 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: Ammunition Feeding Device [ Penal Law § 265.02(8) ]; and one count of Criminal Possession of a Weapon in the Third Degree: Assault Weapon. The People have filed a motion pursuant to CPL § 722.23[1][b], opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances". The AO filed opposition papers to the People's motion and the People have not filed any reply papers in further support of their motion. The People's Motion Opposing Removal is determined as follows:
The charges filed against the AO arise from an incident alleged to have occurred on October 21, 2021, at about 7:20 PM, in H., Nassau County, New York. It is alleged that on that date and at that time, Nassau County Probation Officers responded to the AO's home to do a probation check, at which time the AO was found to be in possession of a loaded Ruger .22 Charger pistol, serial No. 000-00000. The gun is alleged to have had a high capacity 15 (fifteen) round magazine inserted into it, which was loaded with 14 (fourteen) .22 caliber rounds and 1 (one) round in the chamber. The firearm is allegedly considered to be a pistol that has the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip. This feature classifies such weapon as an assault weapon. It is further alleged that while searching the AO's room, Probation Officers Vasquez and Quinones located the firearm in a blue bin located next to the AO's bed. The AO is the sole occupant of the bedroom in which the gun was allegedly found.
The AO was arrested in connection with these charges on October 21, 2021. He was arraigned in the Youth Part of the County Court on October 22, 2021, and the matter was scheduled for a statutory Sixth Day Appearance, to take place on October 27, 2021. At that appearance, the People waived the statutory Sixth Day Appearance and the parties agreed and consented to the Court basing its determination of whether to remove the case to the Family Court on the People's filing of a Motion Opposing Removal pursuant to CPL § 722.23[1][b].
The People's Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Law Assistant Rivka Shuter, practicing pursuant to an order of the New York State Appellate Division, Second Department, with accompanying Memorandum of Law and supporting exhibits appended thereto. The People argue that this AO's case should be retained in the Youth Part because there are extraordinary circumstances in this case, in that: 1) the AO was allegedly on probation for possession of a weapon following a case that began in the Youth Part; 2) the AO was allegedly found in possession of the loaded firearm 7 days after being placed on probation out of family court for possession of a weapon; 3) the weapon that was allegedly recovered was an assault weapon; 4) upon information and belief, a young child lives in the house where the AO possessed an unsecured assault weapon; 5) the totality of the circumstances warrant keeping this case in the Youth Part; and 6) no mitigating circumstances exist which would weigh against retaining the case in the Youth Part.
The People's motion includes a supporting deposition from Probation Officer ["PO"] Maria Vazquez of the Nassau County Probation Department, in which PO Vazquez affirms that on the subject date and at the subject location, she was doing a routine search with PO Murray and PO Quinones and with his mother's permission, they went into the AO's bedroom. (Affirmation of Rivka Shuter in Support of People's Motion , dated November 9, 2021 ["Shuter Aff. in Support of People's Motion"], ¶6, Ex. 4 thereto).
PO Vazquez further affirms that while in the AO's bedroom, PO Vazquez searched his bed and two storage bins; that she opened one of the bins and saw what appeared to be a black firearm. (Shuter Aff. in Support of People's Motion , ¶6, Ex. 4 thereto). PO Vazquez called to the other officers because she was not sure it was a firearm; PO Murray removed the magazine out from the loaded gun; they observed that there was one round that was stuck in the chamber. (Shuter Aff. in Support of People's Motion , ¶6, Ex. 4 thereto). They called the H. Police Department, and the AO was arrested. (Shuter Aff. in Support of People's Motion , ¶6, Ex. 4 thereto). The People's motion also includes photographs of the alleged firearm and photographs depicting the AO's alleged room. (People's Memorandum of Law in Support of Motion ["People's Memo of Law"], p. 8, Ex. 5 thereto).
Defense counsel argues in opposition to the People's Extraordinary Circumstances Motion that the People's Motion Opposing Removal should be denied because: 1) The People failed to prove extraordinary circumstances as they have failed to prove any "highly unusual and heinous facts" which warrant retaining the case in the Youth Part; 2) the People have offered no proof that there is "no possible benefit" to the AO having his case heard in the Family Court, or that the AO is not amenable to Family Court services; and 3) there are mitigating circumstances which, on balance, establish that there are no extraordinary circumstances which warrant retaining the case in the Youth Part. (Affirmation in Opposition by Taryn Shechter, Esq. , dated November 22, 2021 ["Shechter Aff. in Opposition"], ¶¶ 4 through 19).
FINDINGS OF FACT
According to the Felony Complaint, on or about October 21, 2021, at approximately 7:20 PM, at 67 T. Ave, Apt. XX, H., Nassau County, New York, Nassau County Probation Officers responded to the AO's home to do a probation check on the AO. It is further alleged that the AO was found to be in possession of a loaded Ruger .22 Charger pistol, serial # 000-00000. It is further alleged that the gun had a high capacity 15 (fifteen) round magazine inserted into it, which was loaded with 14 (fourteen) .22 caliber rounds and 1 (one) round in the chamber. Furthermore, it is alleged that the firearm is considered to be a pistol that has the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip, and that this feature classifies this weapon as an assault weapon. It is further alleged that, while searching the AO's room, Probation Officers Vazquez and Quinones located the firearm in a blue bin located next to the AO's bed. It is further alleged that the AO is the sole occupant of the bedroom in which the gun was found.
It is alleged in the People's motion papers that the subject probation check was being conducted as part of the conditions of the AO being placed on probation for a period of 12 months following a juvenile delinquency adjudication in the Nassau County Family Court. (Shuter Aff. in Support of People's Motion , ¶ 3). It is further alleged that the AO had only been on probation for one week when he was found to be in possession of the subject assault weapon during that probation check on October 21, 2021. (Shuter Aff. in Support of People's Motion , ¶¶ 3-4).
It is asserted in the AO's opposition to the People's Motion Opposing Removal that the AO was diagnosed with Attention Deficit Hyperactivity Disorder ["ADHD"] and Oppositional Defiant Disorder ["ODD"] when he was seven years old and that a few years ago he stopped taking his medication for these conditions. (Shechter Aff. in Opposition , ¶ 17)
LEGAL CONCLUSIONS
CPL § 722.23[1][d] requires the Court to deny the People's Motion Opposing Removal "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 .
People v. Thomas , 33 NY3d 1, *5 [2019] ; see also People v. Roberts , 31 NY3d 406, 418 [2018] ).
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]).
The Court finds further guidance on the legislative intent from the legislative history of the RTA legislation. ( People v. Roberts , 31 NY3d at 423 ; see also People v. Andujar , 30 NY3d at 166 ). The parties acknowledge in their respective motion paper submissions that the legislators who worked on the Raise the Age ["RTA"] bill intended for all cases, outside of those involving the most serious felony conduct, to be presumptively transferred from the Youth Part to the Family Court. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], pp. 39).
Further examination of the legislative history reveals that legislators intended the "extraordinary circumstances" standard "to be determined and shaped by a judge's ruling after the enactment and effectiveness of [the Raise the Age legislation]"; and that the standard "should take into consideration all the circumstances, including the mental capacity of the offending child". (Assembly Record , p. 83). Recognizing that "every case is going to be different", legislators directed that every case would be "looked at by the judge individually, to determine what kind of factors—both aggravating and mitigating—there are in the case, to determine whether or not" the particular case "passes the exceptional circumstances test". (Assembly Record , pp. 83-84).
Consistent therewith, legislators directed that "Every case is to be judged on its own merits", taking into consideration certain "guideposts" such as whether the crime was committed in a "cruel and heinous manner," and/or whether "the defendant was a ringleader". (Assembly Record , p. 85). The legislators predicted that the cases would be "rare" where the Court would find "extraordinary circumstances" which warrant keeping a case in the Youth Part. (Assembly Record , p. 85).
In this case, mindful of the legislative directives discussed above, and after considering the arguments raised by both parties in their motion papers and reviewing and evaluating their respective supporting exhibits, the Court finds that the People have failed to establish that "extraordinary circumstances" exist which warrant keeping this AO's case in the Youth Part.
As an initial matter, the parties disagree about whether the Court is precluded from considering the AO's family court history in determining whether his case should be removed to the Family Court. As defense counsel argues, Family Court Act § 381.2 provides that, "[n]either the fact that a person was before the family court under [Article 3] 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" . ( FCA § 381.2 ). The People argue that they are not asking this Court to consider the AO's prior juvenile delinquency adjudication, and that they are instead asking the Court to consider the AO's previous arrest, which was first handled in the Youth Part. (People's Memo of Law , p. 11). However, the case involving the AO's previous arrest was ultimately removed to the Family Court, and the AO was placed on probation at the end of his Family Court case. (People's Memo of Law , p. 8).
The Court may, however, consider such records and history when imposing sentence upon an adult after conviction. (See Family Court Act § 381.2 [2] ).
Therefore, in arguing that the AO is not amenable to and would not benefit in any way from the Family Court, the People are asking this Court to use the AO's Family Court history and records against his interests in this case, which is prohibited by FCA § 381.2. Additionally, while the Court is mindful of the fact that the Felony Complaint in this case includes allegations that the subject assault weapon was discovered during a probation check, the Court finds that there is a distinction between acknowledging the factual allegations involved in this case, and considering the allegation that the AO was on probation when the assault weapon was allegedly discovered as a factor that weighs against his interests in determining whether the case should be removed to the Family Court. The Court is constrained by FCA § 381.2 to disregard those portions of the People's arguments which rely on the AO's Family Court case as a factor weighing against removal of his case to the Family Court.
The Court has taken judicial notice of its prior orders and record in the AO's case that was initially heard in the Youth Part and finds his prior arrest for a gun possession charge to be an aggravating factor. However, the prior arrest alone does not constitute an extraordinary circumstance which would automatically warrant retaining this case in the Youth Part. The Court does, however, find a further aggravating circumstance in that the AO was allegedly found to be in possession of a loaded assault weapon in the home that he, at minimum , shares with his mother.
See People v. Jackman , 69 Misc 3d 180, 184 [Crim Ct, New York County 2020]
While the People also allege that, "[u]pon information and belief", a young child resides in the same house where the AO is alleged to have possessed an unsecured and loaded assault weapon in a storage bin, the Court has not received confirmation of such an allegation from a source that has direct knowledge of the same. (See CPL § 722.23, which requires that the People's Motion Opposing Removal "contain allegations of sworn fact based upon personal knowledge of the affiant").
However, the Court has also taken note of the mitigating circumstances offered by defense counsel, in that the AO has been diagnosed with both ADHD and ODD and has not been taking his medication for these conditions. The Court has also considered defense counsel's arguments as to the purpose and intentions of the Raise the Age Legislation, and that denials of transfer to the Family Court are intended to be extremely rare.
Overall, under the totality of the circumstances, having balanced the aggravating and mitigating factors in this case [see, e.g. , People v. B.H. , 63 Misc 3d 244, 250 (Sup Ct Nassau County 2019) ], and having considered the high threshold which the People must meet to succeed on a motion opposing removal to the Family Court, the Court finds that the People have failed to establish the existence of extraordinary circumstances which would warrant retaining this case in the Youth Part.
Accordingly, the People's Motion Opposing Removal to the Family Court is denied and the AO's case will be removed to the Family Court forthwith.
This constitutes the opinion, decision and order of this Court.