Opinion
Youth Part No. FYC-00000-00/000
04-08-2020
The PEOPLE of the State of New York, v. K.F., Adolescent Offender.
Angelo Macaluso, Esq., Attorney for the Adolescent Offender Hon. Madeline Singas, Nassau County District Attorney, Salima Labeb, Esq.
Angelo Macaluso, Esq., Attorney for the Adolescent Offender
Hon. Madeline Singas, Nassau County District Attorney, Salima Labeb, Esq.
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 Affirmation in Opposition and Supporting Papers..2
The Adolescent Offender ("AO"), K.F. (D.O.B. 00/00/2002), is charged with one count of Robbery in the First Degree [ Penal Law § 160.15(1) ] and one count of Assault in the First Degree [ Penal Law § 120.10(1) ]. The People have filed a motion opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances". ( CPL § 722.23[1][b] ). The AO has filed an opposition to the People's motion. The People's Motion Opposing Removal is determined as follows:
The AO is charged for criminal acts alleged to have taken place on January 17, 2020, at approximately 3:40 PM in M., Nassau County, New York. It is alleged that on that date and at that time, the AO aided his co-defendant C.D. in forcibly stealing $30.00 from the victim, and that the AO's co-defendant intentionally cut the victim on both of his hands with a collapsible type of knife, which caused the victim to sustain significant injuries.
The People's Motion Opposing Removal follows this Court's Decision and Order dated March 11, 2020, in which the Court found that the People had failed to satisfy their burden at the statutory "sixth-day appearance" [ CPL § 722.23(2)(c) ] of establishing the existence of at least one of three aggravating factors which would disqualify this AO's case from proceeding toward automatic removal to the Family Court. ( CPL § 722.23[2][c] ). The People thereafter filed the subject Motion Opposing Removal based on the existence of "extraordinary circumstances". ( CPL § 722.23[1][b] ).
The People's Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Salima Labeb, Esq. with accompanying Memorandum of Law, and supporting exhibits appended thereto. The People argue that the "extraordinary circumstances" which warrant keeping this AO's case in the Youth Part include, inter alia , that this AO was a "ringleader" and solicited the attack on the complainant, that this AO "acted in an especially cruel and heinous manner", and that no "mitigating circumstances exist". (Memorandum of Law in Support of Motion to Prevent Removal to the Family Court , dated March 20, 2020 ["People's Memo of Law in Support ], pp. 3-8).
The AO's opposition to the People's motion consists of the sworn affirmation of the AO's attorney, Angelo Macaluso, Esq., with supporting exhibits attached thereto. The AO's counsel contends that this AO's case should be removed to the Family Court because the People have failed to establish the existence of "extraordinary circumstances". Defense counsel disputes the characterization of this AO as the "ringleader" of the attack and argues, inter alia , that this AO was the victim of an assault carried out by the complainant. (Affirmation in Opposition by Angelo Macaluso, Esq. , dated March 30, 2020 ["Macaluso Aff. in Opp."], ¶¶ 11, 17-18).
Defense counsel further asserts that the serious injuries sustained by the complainant are not "extraordinary circumstances" because such injuries are a required element of the Assault in the First Degree with which the AO has been charged. (Macaluso Aff. in Opp. , ¶ 13). Defense counsel argues that multiple factors undermine the People's position that this AO's co-defendant C.D. intended to assault the complainant, and that such factors therefore also negate this AO's ability to share in his co-defendant's intent. (Macaluso Aff. in Opp. , ¶ 22).
FINDINGS OF FACT
Based on the felony complaint, it is alleged that on or about January 17, 2020, at about 3:40 PM, 299 P.R.in M., Nassau County, New York, this AO "aided" his co-defendant in forcibly stealing $30.00 from the victim. (Felony Complaint , Ex. 5 to Affirmation of Salima Labeb, Esq. , dated March 20, 2020 ["Labeb Aff. in Support of Motion"] ). It is further alleged therein that his co-defendant "intentionally cut the victim on both of hands with a collapsible type of knife with a 3 ½ inch blade", which caused deep laceration to both of the victim's hands, exposing the bones and arteries in both hands and requiring approximately 30 stitches and causing the victim "severe bleeding and substantial pain". (Felony Complaint , Ex. 5 to Labeb Aff. in Support ). The collapsible knife was allegedly recovered from the co-defendant's jacket pocket.
In the victim's supporting deposition dated January 17, 2020, he swears under penalty of perjury that he went to the M. L.I.R. station to meet this AO, who the victim knows from Snapchat, to purchase "Stizzy Pod" weed. (Supporting Deposition of Hargeny Fernandez , Ex. 5 to Labeb Aff. in Support ["Supporting Dep. Ex. 5"] ). He further affirms that when he arrived at the train station, this AO was with the co-defendant (whom the victim subsequently learned was C.D.). (Supporting Dep. Ex. 5 ).
This AO told the victim that they could do the drug sale transaction in the upstairs bathroom of the train station; the AO and the victim entered the bathroom while the AO's co-defendant stood outside of the bathroom. (Support Dep. Ex. 5 ). The victim further affirms that he locked the door to the bathroom because he did not feel safe. He told this AO that he no longer wanted to buy the "Stizzy Pod" type of weed. (Support Dep. Ex. 5 ). When the victim reached into his bag to get the $40.00 that he had, this AO allegedly became upset and yelled for the co-defendant, "Yo, come in". (Supporting Dep. Ex. 5 ).
The victim further affirms that the co-defendant then slammed the bathroom door open and the victim noticed that he had a knife in his right hand, and that the co-defendant was trying to stab the victim in a downward motion which caused the victim to drop the $40.00 that he had in his right hand. (Supporting Dep. Ex. 5 ). The victim further affirms that he tried reaching for the base of the knife to defend himself, but he suffered a deep laceration to his left hand, and that once he began to fight back, he grabbed the blade with his right hand, and sustained deep lacerations to that hand. (Supporting Dep. Ex. 5 ).
He further affirms that this AO then grabbed the victim's money and ran out of the bathroom while the co-defendant and the victim were fighting in the train station lobby. (Supporting Dep. Ex. 5 ). The victim observed the police apprehend the co-defendant and he identified the co-defendant as the person responsible for the deep lacerations on his hands. (Supporting Dep. Ex. 5 ). He also identified this AO, who had already left the scene. (Supporting Dep. Ex. 5 ).
Based on the People's representations to the Court, the victim required a total of 30 stitches, a skin graft, and nerve surgery in order to regain normal functioning of his hands. (People's Memo of Law in Support , p. 7).
LEGAL CONCLUSIONS
The statutory procedural requirements for a Motion Opposing Removal based on "extraordinary circumstances" include, inter alia , that such motion "contain allegations of sworn fact based upon personal knowledge of the affiant". ( CPL § 722.23[1][b] ). The People's motion consists, inter alia , of the Affirmation of Assistant District Attorney Salima Labeb, Esq., which statements Ms. Labeb affirms, are made upon information and belief, based on the records of the Office of the District Attorney of Nassau County.
The motion also includes exhibits appended to Ms. Labeb's affirmation, including photographs depicting the victim's injuries and the knife allegedly recovered from the co-defendant [Exs. 1 through 4 to Labeb Aff. in Support ]; the Felony Complaint and the victim's sworn supporting deposition [Ex. 5 to Labeb Aff. in Support ]; copies of law enforcement reports [Exs. 6 and 7 to Labeb Aff. in Support ]; and District Attorney's Office records [Ex. 8 to Labeb Aff. in Support ].
Likewise, the AO's opposition consists of the sworn affirmation of defense counsel, together with supporting exhibits attached thereto, which include, inter alia , two versions of the victim's sworn supporting deposition [Exs. B and C to Macaluso Aff. in Opp. ]; a photo depicting this AO with a swollen lip [Ex. E to Macaluso Aff. in Opp. ]; and a witness's sworn supporting deposition, dated January 17, 2020 [Ex. F to Macaluso Aff. in Opp .].
Under CPL § 722.23[1][d], the Court must deny the People's motion to prevent 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. (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] ).
People v. Thomas , 33 NY3d 1, *5 [2019] ; see also People v. Roberts , 31 NY3d 406, 418 [2018] ).
Consistent with the phrase's "plain meaning", the legislative history of the Raise the Age ["RTA"] legislation reflects that "extraordinary circumstances" is intended to cover "unusual circumstances that would warrant keeping the case in the Youth Part." (Assembly Record, April 8, 2017 ["Assembly Record"] pp. 40-41).
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 it was a "cruel and heinous manner where the crime was committed, [and/or] where 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 "extraordinary circumstances" exist which warrant keeping this AO's case in the Youth Part.
First, the Court finds a significant aggravating factor based on the serious and debilitating injuries sustained by the victim. The Court is cognizant of the fact that legislators did not explicitly include such as an example of an aggravating factor. However, based on a review of the legislative history behind RTA and a review of the relevant statutory text [ CPL § 722.23 ], it appears to the Court that legislators may have intended for cases involving such serious and violent felony charges such as Robbery in the First Degree and Assault in the First Degree, to primarily remain in the Youth Part rather than be removed to the Family Court. (See, e.g. , Assembly Record , pp. 42-43 [where the sponsor of the RTA bill clarifies that the apparent presumption of removal to the Family Court is intended to cover "non-violent felonies and those violent felonies that are really non-violent, in actuality"]; see also , Assembly Record , p. 66). There is no dispute that in this case, the victim is the only individual who sustained such serious, painful injuries, and that he has required extensive medical intervention to regain normal functioning.
Second, although this AO does not appear to have "coerced" or "threatened" any other youths to participate in the subject incident, the Court nevertheless finds an additional aggravating factor based on this AO's role in setting up the entire drug sale meet and based on additional evidence that he was apparently in a position of power and authority throughout the incident, including the fact that he determined that the drug sale transaction would be completed in the upstairs bathroom of the train station, and that he directed his co-defendant to enter the bathroom. The Court finds an additional and further aggravating factor based on the victim's sworn statement that this AO apparently took advantage of the victim's vulnerability to grab his money and flee the scene while the victim and his co-defendant continued their violent fight.
The Court finds a mitigating factor based on the fact that this single incident represents the AO's one and only interaction with the criminal justice system. However, the Court has been presented with no other mitigating factors concerning this specific AO; examples of such factors discussed by legislators include substandard housing or other socio-economic difficulties, severe lack of a familial support system and/or mental health or substance abuse issues, and/or other factors which could arguably make an individual more susceptible to exhibiting immaturity or having a lack of foresight.
Under the totality of the circumstances, the Court finds, 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 Cty. 2019) ], that there are extraordinary circumstances which warrant keeping this AO's case in the Youth Part through disposition. The Court is mindful of defense counsel's arguments purporting to attack the version of the underlying facts as set forth in the felony complaint and in the victim's sworn deposition. Such arguments by defense counsel may foreshadow potential difficulties that the People may face in ultimately proving their case against the AO and his co-defendant. However, at this juncture, the People have satisfied their burden in establishing that this AO's case is disqualified from removal to the Family Court.
Accordingly, the People's Motion Opposing Removal to the Family Court is granted and this AO's case will remain in the Youth Part for all future proceedings.
This constitutes the opinion, decision and order of this Court.