Opinion
Docket No. FYC-70674-23/001
05-01-2023
The People of the State of New York v. J.L., AOs.
Rachel L. Newton, Esq. (Assistant District Attorney) Kara A. Buscaglia, Esq. (for the Principal)
Unpublished Opinion
Rachel L. Newton, Esq. (Assistant District Attorney)
Kara A. Buscaglia, Esq. (for the Principal)
HON. BRENDA M. FREEDMAN, Judge.
The People having moved pursuant to Criminal Procedure Law, Article 722, § 722.23(1), et seq. for an order preventing removal of these actions to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion and Supporting Affidavit of Rachel L. Newton, Esq. (Assistant District Attorney), dated April 11, 2023; the Affirmation by Kara A. Buscaglia, Esq., dated April 21, 2023, on behalf of AO J.L.; oral argument and a hearing on the motion having been waived and due deliberation having been had, the Court finds the following:
Procedural History
On March 8, 2023, AO J.L. was arrested on one count of Criminal Possession of a Controlled Substance in the Third Degree, a class B felony as defined by Penal Law §220.16(1) and §20, one count of Criminal Possession of a Controlled Substance in the Fourth Degree, a class C felony as defined by Penal Law §220.09(1) and §20, and one count of Criminally Using Drug Paraphernalia in the Second Degree, a class A misdemeanor as defined by §220.16. Following the arrest, also on March 8, 2023, AO J.L. was arraigned on under FYC-70674-23/001 in Youth Part by Hon. Brenda M. Freedman and released under the supervision of probation with an ankle monitor and curfew from 8:00 PM through 7:30 AM. AO J.L. was 17 years old when these felony charges were brought making AO J.L. an "Adolescent Offenders" pursuant to CPL § 722. A "6-day review" was held on March 13, 2023, the People conceded that the allegations did not meet the requirements of CPL § 722.23(2)(c). This Court ordered these actions to proceed in accordance with CPL § 722.23(1).
On April 11, 2023, attorney Rachel L. Newton, on behalf of the People, filed a Notice of Motion requesting that the matter stay in the Youth Part. On April 21, 2023, attorney Kara A. Buscaglia, on behalf of AO J.L., filed an Affirmation in Opposition to the motion.
Findings of Fact
AO J.L. was arrested on March 8, 2023, along with two codefendants. AO J.L.'s codefendants are AO J.L.'s mother and AO J.L.'s mother's boyfriend. The arrest took place in the home that AO J.L. was living in under the care of his codefendants. All three codefendants were charged with Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fourth Degree, and one count of Criminally Using Drug Paraphernalia in the Second Degree. The controlled substances were in a hallway closet that is communal living space in the home and accessible by all three codefendants.
AO J.L. has another matter currently pending in Erie County Youth Part in which AO J.L. is charged with Assault in the Second Degree CL §120.05(3). An extraordinary circumstances motion to prevent removal to Family Court was granted in that matter on May 13, 2022. Additionally, AO J.L. has had two other matters before Erie County Youth Part that were removed separately on June 13, 2022 and August 22, 2022.
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 case at hand before this Court has AO A.L. charged with possessing controlled substances. These controlled substances were found in communal areas of a home that AO J.L. was living in under that care of AO J.L.'s mother and AO J.L.'s mother's boyfriend. All three are currently charged with the same crimes. The People argue that AO J.L.'s other charges that are under indictment demonstrate that AO J.L. in not amenable to the rehabilitative services offered by Family Court. The People further argue that firearms found near the home at the time of the arrest coupled with AO J.L.'s social media postings are further aggravating factors that this Court should consider. Additionally, the People ask this Court to consider the dangerousness of the controlled substances, to wit that it contained fentanyl, as an aggravating factor. Conversely, AO J.L.'s counsel argues that this Court should not even consider any social media postings or firearms found around the home since they were not included in any charges brought against AO J.L. Further, defense counsel points out that AO J.L. is a minor in the home where the responsible adults are codefendants.
This Court, after considering the aggravating factors and mitigating circumstances, finds the present matter is not one of extraordinary circumstances such to prevent the charges against AO J.L. from being removed to Family Court. The circumstances in this case are not so exceptional as to overcome the presumption that only "one out of 1,000 cases" would remain in the Youth Part and not be removed to Family Court. (Assembly, Record of Proceedings, April 8, 2017, pp. 37-38); see People v M.M., 64 Misc.3d 259, 268 [NY Co Ct 2019]. Here, AO J.L. is charged with possession crimes along with AO J.L.'s responsible adults. It is contrary to the spirit of Raise the Age to criminally punish a minor for the circumstances that they have been born into. AO J.L. is clearly not situated as the leader of the currently charged criminal activities, and AO J.L. was not coercing others into engaging in the currently charged criminal activities. See People v S.J., 72 Misc.3d 196 (Fam Ct 2021). AO J.L. is not alleged to have displayed any weapon as part of the current charges and AO J.L.is not charged with possessing any firearms. The present allegations do not include AO J.L. committing any acts of violence on anyone. There is nothing in the present allegations that AO J.L. caused any injuries.
The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. Extraordinary circumstances do not exist here. The People did not meet its burden to prevent removal of these actions to Family Court. These matters shall be removed to Erie County Family Court.
This constitutes the opinion, decision, and order of this Court.
SO ORDERED.