Opinion
FYC-70001-19
02-22-2019
The PEOPLE of the State of New York v. D.P., Defendant.
Meredith M. Mohun, Esq., ( Assistant District Attorney) Giovanni Genovese, Esq., (for the Defendant)
Meredith M. Mohun, Esq., ( Assistant District Attorney)
Giovanni Genovese, Esq., (for the Defendant)
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 Affidavit of Meredith M. Mohun, Esq. (Assistant District Attorney), subscribed and sworn to on February 1, 2019, in support of the motion, and Affidavit of Giovanni Genovese, Esq., sworn to on February 12, 2019, on behalf of D.P. ("Defendant"), in opposition to thereto, and oral argument having been held on February 15, 2019, and due deliberation having been had thereon, the Court finds the following:
This action was commenced by way of an accusatory instrument which charged Defendant with Criminal Possession of a Weapon in the Second Degree, a Class C Felony, as defined by Penal Law § 265.03(3). It alleges that the crime occurred on January 4, 2019.
Defendant was born on June 27, 2002. He was brought before Youth Part because he was sixteen years old when the crime is alleged to have been committed. Thus, by law Defendant is considered an "Adolescent Offender."
Defendant was arraigned on January 4, 2019. Following the arraignment, the Court determined that the People did not meet the requirements of CPL § 722.23(2)(c). The Court ordered this action to proceed in accordance with CPL § 722.23(1).
The pertinent factual part of the Felony Complaint states "on information and belief.", the following:
the defendant while at East Delavan and Newburgh did knowingly and unlawfully possess a loaded firearm in that the defendant did have in his possession and under his control: a loaded firearm. In that the defendant while at East Delavan and Newburgh was spotted by Parole Officer Chad Klier and fled on foot. The defendant was apprehended outside of 1304 East Delavan by Paroled Officer Chad Klier. Parole Officer Michael Hooton recovered a loaded Smith and Wesson .38 Caliber revolver, model No. CTG, serial # R45169, loaded with four rounds in the chamber. The abovementioned weapon was turned over to PO. Kevin Kindzierski who made the weapon safe. Weapon was submitted by Lt. Mitchell Thomas. The Defendant also has an outstanding parole warrant.
On February 1, 2019, the People filed this motion pursuant to CPL § 722.23(1)(b) to prevent removal to family court. In support of its application, the People attached to the Mohun Affidavit copies of the following: Felony Complaint, Supporting Deposition of Karen Korkuc, Esq. (Erie County Assistant District Attorney), Supporting Deposition of Mary Dietz (Erie County Probation Department Officer), Certificate of Release to Parole Supervision, Supporting Deposition of Mark Schueler (New York State Parole Officer), Supporting Deposition of Chad Klier ( New York State Parole Officer), Supporting Deposition of Brian Bailey (New York State Parole Officer), Supporting Deposition of Matthew Williams (New York State Parole Officer), Supporting Deposition of Michael Hooton (New York State Parole Officer), Supporting Deposition of Nicholas Zakowicz (New York State Parole Officer), Supporting Deposition of Kevin Kinderzierski (New York State Parole Officer), Supporting Deposition of Lt. M. Thomas ( Buffalo Police Department), Firearm Analysis Report, and Violation of Release Report.
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." To this end, the People rely upon the aforesaid supporting depositions which have all been subscribed and verified under penalty of perjury. As such the contents therein falls within the mandate of CPL § 722.23(1)(b).
CPL § 722.23(1)(d) provides that a motion to prevent removal shall be denied unless the district attorney establishes the existence of "extraordinary circumstances" to prevent removal. The Raise the Age legislation ("RTA") does not specifically define ‘extraordinary circumstances.’ Thus, extraordinary circumstances must be determined on a case by case basis. We can conclude from its ordinary meaning that it refers to that which is very unusual or remarkable. The Court, in its discretion, should look for circumstances that go beyond what is regular and foreseeable in the normal course of events.
Here, we look first to the Felony Complaint which served as the basis for commencement of this action and set forth in detail the factual allegations of the crime charged. It was signed under penalty of perjury by the complainants. The factual part seems to support each element of the alleged offense. It appears to be sufficient on its face. While the Felony Complaint seems to satisfy the requirements of CPL § 722.23(1)(b), the Court does not find the alleged criminal behavior of Defendant as set forth therein in-itself to be extraordinary circumstances to prevent removal of this action to family court. Since the factual part of the accusatory instrument alone does not rise to the level of extraordinary circumstances, the Court now considers the events as set forth in the supporting depositions.
Defendant was charged on July 24, 2017, with violating multiple provisions of the NYS Penal Law including Criminal Possession of a Weapon in the Fourth Degree. He was subsequently charged on July 25, 2017, with among other things, Robbery in the Second Degree. Defendant pled guilty to Robbery in the Second Degree on October 4, 2017. He was sentenced on November 21, 2017. Defendant was granted youthful offender status and sentenced to six months incarceration and five years probation.
On December 1, 2017, Defendant and Probation Officer Mary Dietz discussed the terms of his probation. In her supporting deposition, Officer Deitz's lists repeated violations by Defendant of the terms of probation which ultimately resulted in a revocation and period of placement in the custody of the Office of Child and Family Services. Defendant was placed at Brookwood Secure and was released on September 4, 2018.
Upon his release, on September 5, 2018, Defendant and Parole Officer Mark Schueler discussed the terms and conditions of his parole supervision. Officer Schueler's supporting deposition is replete with claims of violations by Defendant of the terms and conditions of his parole supervision that led to a parole violation hearing on September 13, 2018. Defendant's parole was revoked and restored to parole supervision with GPS monitoring. Between November 9, 2018, when Defendant was released from custody to Officer Schueler, and December 26, 2018, Defendant is alleged to have routinely allowed the battery in the GPS to show "critical battery" notwithstanding instructions by Officer Schueler on how to keep the device charged. According to Officer Schueler, the device eventually "went dead", and he had to track the Defendant. He ultimately found Defendant in a location other than the one where he was supposed to be.
The People now ask the Court to conclude that the past violations of probation, failure of Defendant to comply with the terms of parole supervision, and the current charge against Defendant, in its totality, to be extraordinary circumstances which warrants continuing the matter in Youth Part.
The People argue that a determination of extraordinary circumstances must include consideration of the totality of circumstances including the number of charges filed against a defendant, whether current or past. Even charges filed prior to the enactment of the RTA as is the case here should be given consideration. This Court concludes just the opposite. Reform is about changing the dynamics. The intent of the RTA is to give adolescent and juvenile offenders an opportunity to rehabilitate. The goal is avoidance of criminal records and incarceration when possible and in appropriate circumstances.
The People further argue that removal to family court would merely amount to allowing Defendant's criminal behavior to go without consequences. On the record, the Court does not reach this conclusion. There was in fact a consequence for violating probation in that Defendant was subsequently placed at Brookwood Secure and later released on parole supervision on September 4, 2018. As to the People's argument that there are no consequences for the current alleged parole violation, a parole revocation hearing is available here and Defendant will face placement in the event of revocation. Moreover, there are consequences with a removal to family court as this matter will likely result in a juvenile delinquency charge and potential placement upon adjudication.
The People also rely upon People v. A.G. , 2018 NY Slip Op 51963(U) [Queens Co. Dec 20, 2018]. There, defendant had five separate pending cases of which at least three were not eligible for removal. The remaining two cases were subject to removal on motion. The three cases had not yet been disposed of by the Court. Here, Defendant does not have any pending cases apart from the matter before this Court. All prior cases against Defendant have been adjudicated with dispositions. Thus, A.G. is distinguishable on the facts and does not give this Court any guidance in deciding the present motion.
Based upon the foregoing, the Court concludes that ‘extraordinary circumstances’ do not exist to prevent the removal of this action to family court. Hence, the People's motion to prevent removal is denied and the matter shall be removed to family court.