Opinion
FYC-70105-19/001
10-17-2019
The PEOPLE of the State of New York v. J.C., Defendant.
Meredith M. Mohun, Esq. (Assistant District Attorney) Ann M. Nichols, Esq. (for the Defendant)
Meredith M. Mohun, Esq. (Assistant District Attorney)
Ann M. Nichols, Esq. (for the Defendant)
Kevin M. Carter, J.
The People having moved pursuant to Criminal Procedure Law § 722.23(1) for an order preventing removal of this action to Family Court, and upon reading the Answering Affidavit to prevent removal by Meredith M. Mohun, Esq., affirmed September 13, 2019, on behalf of the People, Affirmation in Opposition to prevent removal by Ann M. Nichols, Esq., affirmed on September 16, 2019, on behalf of J.C. ("Defendant"), in opposition to the motion, and oral argument having been held on September 27, 2019, and listening to oral arguments from both sides, with due deliberation having been had thereon, the Court finds the following:
This action was commenced by way of two Felony Complaints which charged Defendant with Criminal Possession of a Weapon in the Second Degree, as defined by Penal Law § 265.03(3), and Criminal Possession of Stolen Property in the Fourth Degree, as defined by Penal Law § 165.45(4). It is alleged that the offenses occurred on August 13, 2019 and arose from the same transaction and occurrence.
Defendant was born on March 27, 2003. He was brought before Youth Part because he was sixteen years old when the crimes are alleged to have been committed. Thus, by law Defendant is considered an Adolescent Offender (hereinafter, "AO").
AO was arraigned on August 13, 2019. On August 19, 2019, the Felony Complaints were reviewed and the Court determined the People did not meet the requirements of CPL § 722.23(2)(c). Thereafter, the Court ordered this action to proceed in accordance with CPL § 722.23(1).
The pertinent factual part of the Felony Complaints ("Complaints") states "on my own knowledge", the following:
Criminal Possession of a Weapon in the Second Degree, as defined by Penal Law § 265.03(3) :
the defendant had in his possession and under his control, one loaded firearm. In that while officers investigating a loud noise coming from a vehicle in the area did observe the defendant peeing in the rear driveway of 63 Countess. Upon approaching the defendant to investigate, the defendant did make furtive movements toward the ground where he was standing. Upon further investigation, Officer Jake Giarrano did recover one loaded Taurus 9MM G2C firearm, bearing serial number, PT111G2A, loaded with twelve round in magazine and one round in the chamber, from the ground where the defendant was peeing. Officer Jake Giaranno did make said weapon safe and clear and Officer Ronald Ammerman did submit the firearm into evidence.
Criminal Possession of Stolen Property in the Fourth Degree, as defined by Penal Law § 165.45(4) :
while officers investigating a loud noise coming from a vehicle in the area did observe the defendant peeing in the rear driveway of 63 Countess. Upon approaching the defendant to investigate, the defendant did make furtive movements toward the ground where he was standing. Upon further investigation, Officer Jake Giarrano did recover one loaded Taurus 9MM G2C firearm, bearing serial number, PT111G2A, loaded with twelve round in magazine and one round in the chamber, from the ground where the defendant was peeing. Officer Jake Giaranno did make said weapon safe and clear and officer Ronald Ammerman did submit the firearm into evidence. Said firearm was reported stolen on July 28, 2018 out of Houston Texas.
On September 13, 2019, the People filed this motion pursuant to CPL § 722.23(1)(b). The People elected to proceed on the motion in the form of oral argument. In support of its application, the People attached to the 'Answering Affidavit', copies of two prior Felony Complaints against AO, a 911 call to dispatch (from a prior charge), Buffalo Police Complaint Summary Report (from a prior charge), Supporting Deposition of a Buffalo Police Officer Taborn (from a prior charge), Supporting Deposition of Buffalo Police Officer Paul Locke (from a prior charge), Body Camera Footage from Officer Locke (from a prior charge), Supporting Deposition of Buffalo Police Officer Lehner (from a prior charge), Erie County Central Police Services Forensic Laboratory Firearms Analysis Report No.1 for Case No. 19-2120388 (including Request for Laboratory Examination and Evidence Discrepancy Form) (from a prior charge), Erie County Central Police Services Forensic Laboratory DNA Analysis Report #2 (from a prior charge), and Erie County Central Police Services Forensic Laboratory Firearm Analysis Report #1 for Case No. 19-2250829 (including Request for Laboratory Examination and Evidence Discrepancy Form) (from a prior charge), copies of the two Felony Complaints, Supporting Deposition of a Buffalo Police Officer Giarrano, Body Camera Footage from Officer Giarrano, Supporting Deposition of a Buffalo Police Officer Ammerman, Body Camera Footage from Officer Ammerman, a photograph, Supporting Deposition of a Buffalo Police Officer Britzzalaro, and Erie County Central Police Services Forensic Laboratory Firearm Analysis 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." As such any contents contained that do not fall within the mandate of CPL § 722.23(1)(b) will not be considered in this Court's determination. To this end, the People rely upon the Complaints and supporting depositions which were subscribed, verified and sworn to under penalty of perjury on or about September 10, 2019. The Complaints and supporting depositions fall 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 unusual or remarkable. That is the Court should look for circumstances that go beyond what is regular in the normal course of events.
We look first to the Complaints which served as the basis for commencement of this action and sets forth in detail the factual allegations of the crimes charged. They were signed under penalty of perjury by the complainants by the arresting officers. The factual parts seem to support each element of the alleged offenses. They appear to be sufficient on their face. However, while the Complaints seem to satisfy the requirements of CPL § 722.23(1)(b), the Court does not find the alleged criminal behavior as set forth therein in-itself to be "extraordinary circumstances" to prevent removal of this action to family court.
Since the factual parts of the accusatory instruments alone do not rise to the level of extraordinary circumstances, the Court now considers additional factors argued by the People, and whether in the totality they rise to the level of circumstances required to prevent removal.
The People ask the Court to consider the foregoing charges and following circumstances in its totality when determining whether to find extraordinary circumstances. First, the People argue that the alleged crimes were committed while AO was on release while another charge was pending. Second, the alleged crimes were committed in close time proximity to other pending charge. Specifically, AO was formerly charged with criminal possession of weapon just two weeks early. Third, AO allegedly attempted to flee from the officer when he was initially confronted. Fourth, the weapon AO is alleged to have possessed was loaded at the time of possession. Fifth, the loaded weapon is alleged to have been possessed by AO in close proximity to a park where other children were playing. Sixth, while in custody of the police, AO allegedly possessed bullets that were contained in latex gloves AO attempted to hand to his mother. In conclusion, the People argue that some or all the enumerated circumstances together in its totality warrants a finding that AO was acting in a manner of an adult, with reasoned rationale, rather than as a child, with an impulsive rationale. The People submit that these circumstances viewed through the lens as a collective criminal mindset rise to the level of extraordinary circumstances as intended under RTA.
Defense Counsel ("Counsel") waived the right for a testimonial hearing and consented to rely on the papers and oral argument. Counsel argues that the charges and behavior of AO do not rise to the level of extraordinary circumstances. Counsel cites the previous cases where extraordinary circumstances was determined and distinguished those circumstances from the present case. See People v. Ampy , [Sup. Ct. NY Co. 2018]; People v. A.G. , 62 Misc3rd 1210 [Sup. Ct. Queens Co. 2018] ; People v. A.T. , 63 Misc 3d 891, [Erie Cty. Ct. 2019] ; People v. J.B. [Onondaga Co. Ct. 2019]; People v. J.T. [Sup. Ct. Queens Co. 2019]. All these cases involved circumstances where a specific victim was directly impacted. Here we have a possession charge. CPL § 722.23(2)(c)(ii) specifies that when a firearm or other deadly weapon is displayed in furtherance of an offense the matter should remain in Youth Part. The Legislator was specific about the weapon being displayed and used in the furtherance of the alleged crime. The mere act of possession clearly does not meet the threshold of CPL § 722.23(2)(c)(ii). Possession of a weapon was intentionally not listed as a charge that would remain in Youth Court on its face. There must be something extraordinary about the circumstances around the possession. Looking again to CPL § 722.23(2)(c)(ii) the Legislator articulated circumstances where a person is shown a deadly weapon. There is an individual who is place in the situation where they are faced with a deadly weapon by someone who is in the process of committing a crime. That is a measurably different scenario than the present matter.
Counsel specifically distinguished the present case from People v. A.T. wherein this Court found extraordinary circumstances. In A.T. the Court utilized the following factors in determining the extraordinary circumstances: "(1) whether the AO committed a series of crimes over a series of days, (2) whether the AO acted in an especially cruel and/or 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 895. The Court applies the same factors here.
The instant matter can be distinguished from A.T. First, AO in A.T. was charged with two violent felonies where there were specific victims in each instance. Although AO in the instant case is charged with two separate instances of criminal possession of a weapon, neither of the incidents had a victim any ilk. And there is not claim AO attempted to use the weapon in the furtherance of any criminal activity. Second, AO in A.T. failed to appear in court and being orally directed and provided with written notice to do so. Thus, making the issuance of a warrant necessary. Third, AO in A.T. was arrested in connection with an additional charge while the aforementioned warrant was outstanding. This is not the case here. To the contrary, AO has continued to submit to the jurisdiction of this Court. Additionally, AO accepted services and has remained compliant with services once they were presented to him. It should be noted that services were in fact offered to AO upon arraignment of the first charge but were not commenced to do circumstances beyond control of AO.
To be clear, The Court realizes the severity of the felony offenses of which AO is charged. The circumstances around the offenses are also sever. However, the severity of the circumstances is at the level that would normally accompany the charges against AO. If the charges on their face do not prevent removal from Youth Part, then the expected circumstances surrounding those charges cannot prevent removal. The present case has circumstances as well as charges that are serious. They are the type of case that will commonly be before Youth Part. Were this Court to prevent removal in this case it would setup a situation where many (if not all) cases brought with merely weapon possession charges would remain in Youth Part rather than be removed. That is clearly not the intent of RTA.
The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. There is a strong preference for removal from Youth Part to Family Court. It is especially true in cases where there are no specific victims of the crimes alleged to have been committed. Although it is significant AO is alleged to have engaged in a second occurrence while released under supervision of probation ("RUS"), probation was not available to fully engage AO with services between RUS and the second charge. They have since fully engaged AO who has been compliant and appears to be amenable to services without any further charges.
Based upon the foregoing, the Court finds 'extraordinary circumstances' does not exist to prevent removal of this action to Family Court. Hence, the People's motion to prevent removal is denied and the matter shall be removed from Erie County Youth Part.