Opinion
Docket No. FYC-72160-23/001
08-24-2023
The People of the State of New York v. R.B., AO.
Amanda Raimondi, Esq. (Assistant District Attorney) Daniel Schaus, Esq. (for the Principal)
Unpublished Opinion
Amanda Raimondi, Esq. (Assistant District Attorney)
Daniel Schaus, Esq. (for the Principal)
Brenda M. Freedman, J.
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 Affirmation of Amanda L. Raimondi, Esq. (Assistant District Attorney), dated August 11, 2023; the Reply Affirmation in Opposition by Daniel P. Schaus, Esq., dated August 19, 2023, on behalf of AO R.B.; oral argument and a hearing on the motion having been waived and due deliberation having been had, the Court finds the following:
Procedural History
AO R.B. is charged under FYC-72160-23/001 with violating NYS Penal Law § 265.02(3), Criminal Possession of a Weapon in the Third Degree, a class D felony.
On July 14, 2023, Hon. Kelly A. Brinkworth arraigned AO A.R. and released him under Probation supervision with an ankle monitor.
The six-day reading was held on July 20, 2023. The People conceded that the allegations did not meet the requirements of CPL § 722.23(2)(c). This Court ordered this action to proceed in accordance with CPL § 722.23(1).
On August 9, 2023, Probation submitted a Notice of Failure to Comply with Supervision. Probation stated that AO R.B.'s probation officer had placed him on house arrest the day he was arraigned. AO R.B. violated his curfew on 15 of the 27 days following his arraignment. This Court scheduled a court appearance to address the Notice of Failure to Comply. AO R.B.'s release under supervision was continued, but the Court advised it would reassess AO R.B.'s release at the next appearance.
On August 11, 2023, attorney Amanda Raimondi, on behalf of the People, filed a Notice of Motion requesting that the matter remain in the Youth Part.
On August 21, 2023, attorney Daniel P. Schaus, on behalf of AO R.B., filed a Reply Affirmation in Opposition.
Findings of Fact
AO R.B. was placed on probation on a juvenile delinquency matter prior to the date of the Felony Complaint at bar. The Felony Complaint provides that on July 14, 2023, the Erie County Probation Department was conducting a warrantless search on AO R.B. pursuant to the terms of his juvenile delinquency probation supervision. AO R.B.'s juvenile probation officer entered AO R.B.'s bedroom, lifted his bed and box spring, and found what appeared to be a black handgun and a blue duffle bag containing a shotgun with a missing stock. Upon further investigation, the Probation Officer determined that the handgun was a toy gun. The shotgun was submitted to the Erie County Forensic Laboratory for analysis. The shotgun was found to be operable with laboratory ammunition. The serial number on the shotgun was defaced.
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 facts of this case are not highly unusual or extremely rare. No one was harmed during this incident. The People do not allege that the shotgun was used in furtherance of any crimes. AO R.B. did not display a firearm, nor did he cause injury or threaten to cause injury to anyone or anything. Further, the People do not allege that AO R.B. committed a series of crimes over multiple days or led, threatened, or coerced other reluctant youth into committing the crime before the court.
The People make strong allegations that AO R.B. would not be amenable to or would not benefit in any way from the heightened services in Family Court. However, "[t]he 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). Therefore, this Court cannot consider the fact that AO R.B. was on probation supervision on a juvenile delinquency matter at the time of this incident. The People further argue that AO R.B. violated his curfew an inexcusable number of times, and they say they repeatedly reminded AO R.B. and his parent what it means to be on house arrest. Defense Counsel takes the position that AO R.B. and his mother believed that AO R.B. could leave his residence at the direction of his mother, and many of his curfew violations were due to his employment. AO R.B. is currently working for a local summer youth program, where he is coaching and teaching kids. He is enrolled at a local community college, where he will begin classes soon. Additionally, AO R.B. does not have any other matters currently pending in Youth Part. This Court finds that the People failed to meet their burden of proving that this young person is not amenable to or would not benefit in any way from the heightened services in Family Court.
Extraordinary circumstances do not exist to prevent the transfer of this action to Family Court. The People have not 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], and thus the People did not meet its burden to prevent removal of this action to Family Court. This matter shall be removed to Erie County Family Court.
This constitutes the opinion, decision, and order of this Court.
SO ORDERED.