People v D.L.

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[*1] People v D.L. 2018 NY Slip Op 28419 Decided on December 27, 2018 Family Court, Monroe County Kohout, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 27, 2018
Family Court, Monroe County

The People of the State of New York,


D.L., Defendant.


Daniel E. Strollo, Esq.

Assistant District Attorney

47 S. Fitzhugh Street, Suite 832

Rochester, NY 14614

(585) 753-4685

Matthew J. Clark, Esq.

Senior Assistant Public Defender

10 N. Fitzhugh Street

Rochester, NY 14614(585) 753-4313
Joan S. Kohout, J.


The defendant, D. L. (d.o.b 10/xx/02) is charged as an adolescent offender (Penal Law §1.20 [44]) pursuant to a youth felony complaint with a single count of attempted arson in the second degree (Penal Law §§150.15 and 110.00). She was arraigned in the Monroe County Youth Part and scheduled for a six-day review pursuant to CPL 722.23 (2) (a). At that time, the district attorney agreed that there were no aggravating factors that would disqualify the case from [*2]transfer [FN1] to Family Court under CPL 722.23 (2) (c). The district attorney, however, filed a motion to prevent removal to the Family Court as permitted by CPL 722.23 (1) (a) alleging that there were extraordinary circumstances that warranted the case remaining in the Youth Part. The defendant filed a response in opposition requesting that the case be transferred. No hearing was required since there were no significant factual disputes (see Penal Law §722.23 [1] [c]).

After considering the arguments of counsel on December 12, 2018, the court rendered a decision on the record denying district attorney's motion and removing the case to the Family Court as required by Penal Law §722.23 (1) (d). This decision amplifies the oral decision rendered on December 12, 2018.

Statutory Background

On October 1, 2018, a new law went into effect commonly known as "Raise the Age"

(L 2017, ch 59, pt WWW). [FN2] The statute created a new class of defendants called "adolescent offenders" (AO s), who are defendants charged with a felony committed on or after October 1, 2018 when the defendant was 16 years old, or effective October 1, 2019 when the defendant was seventeen years old (CPL 1.20 [44]). The statute mandates the creation of a youth part in the superior court of every county with exclusive jurisdiction over AO and Juvenile Offender defendants (see CPL 1.20 [42]) and presided over by specially trained Family Court judges (CPL 722.10 [1]); see also CPL 410.90-a).

Under the new law, the case is commenced by the filing of a youth felony complaint directly in the Youth Part rather than in the local criminal court. If the accusatory instrument alleges a non-drug class A felony or a violent felony defined by PL §70.02, the court must conduct a review of the accusatory instrument within six calendar days from the arraignment (CPL 722.23 [2] [a]). If the district attorney proves by a preponderance of the evidence that any one of three aggravating factors exist, the case remains in the Youth Part for adjudication under the criminal law (CPL 722.23 [2] [c]). If the parties agree or the court determines that none of the aggravating factor apply to the case, the case is transferred to the Family Court unless the district attorney files a motion within 30 days to prevent removal alleging that extraordinary circumstances exist to retain the case in the Youth Part (CPL 722.23 [1] [a]).

The court is required to deny the motion to prevent removal unless it finds that "extraordinary circumstances exist that should prevent the transfer of the action to family court"

(Penal Law §722.23 [1] [d]). The term extraordinary circumstances is not defined in the statute.

When a case is removed to the Family Court, further criminal proceedings are prohibited regarding the offenses subject to the removal (Penal Law §722.21 [6] [e]).

Findings of Fact

The facts in this case are largely undisputed, although the parties offer differing interpretations of the defendant's conduct.

The district attorney's motion objecting to the removal of the case to the Family Court argues that the nature of incident involving an attempted arson demonstrated "callous disregard for the life and safety of others" was an act of premeditation that indicates that D.L is a "dangerous criminal who deserves to be prosecuted as such."

Attached to the youth felony complaint is a deposition from the complainant , who stated that she was seated in her home when the doorbell rang and that the defendant asked to see her son stating that "he was not going to play her for 2 days and then go back to his baby momma." The defendant then told the complainant that she was going to burn her house down. The complainant closed the door and called 911. She then saw flames outside her window and called for people to get out. A deposition from a passerby stated that he saw someone set a piece of furniture on the porch on fire and called 911.

There is no indication of any damage to the house or that any person was injured. That the defendant rang the door bell, announced her intention and did not set the cushion on the bench on the porch in secret, but did it in plain view in a manner where the fire could be easily contained is consistent with the defense position that the fire was set impulsively as an angry act by a 16 year old toward a former intimate partner.

Attached to the district attorney's motion is the deposition of Rochester Police Department Inv. Matt Klein, who stated that he interviewed the defendant in the presence of her mother. D.L. told him she was mad at her former boyfriend for giving her a sexually transmitted disease and mad that neither he nor his mother believed that this had occurred. She boasted that she was a "real gangster" and said she wanted to save $3,000 so she could have a baby when she turned 18. The investigator concluded his deposition by stating that "she acted very immature when talking about how her actions could affect other people and even herself" and that he "had concerns regarding the mental health of D. and would like her to talk to some type of mental health and life counselors as part of the outcome of this incident."

The defendant's response to the motion argues that the term extraordinary circumstances suggests "highly unusual" facts and that no such facts exist in this case. The response also references Assemblyman Joseph R. Lentol's comments during the legislative debate on the bill on April 8, 2017 in support of that interpretation. The defendant further argues that there was no attempt to hide that the bench cushion was being set on fire and that D.L's acts are consistent with impetuous angry behavior that was a "cry for help."

Conclusions of Law

Since the statute contains no definition of extraordinary circumstances and there is no reported case law regarding this new law, the legislative history provides the best interpretive guidance. Based on the comments during the legislative debate, the legislators who negotiated the bill intended that virtually all cases be quickly transferred from the Youth Part to the Family Court. In Family Court, young defendants would have better access to youth focused services [*3]and treatment and would be saved the onus of a criminal conviction, but would still be subject to appropriate sanctions to hold them accountable.

During the Assembly debate on the statute on April 8, 2017, Assemblyman Joseph R. Lentol, described the negotiations involving the Assembly, the Senate and the Governor's office. In discussing the requirement for extraordinary circumstances he stated:

And, as a matter of fact, the standard was actually suggested by Senator

Lanza when we met in the Governor's office, the Chair of the Senate

Codes Committee, to create this type of presumption where only one out of

1,000 cases [emphasis added], he said, for example, those extremely rare and exceptional cases, would remain in the youth part. And there may be a small

number of cases, however, where the prosecutor objects to the transfer to the

family court and in those instances, the prosecutor, as I've said before, must

file a motion to challenging [sic] the transfer and the transfer to that family court

must occur, unless the prosecutor proves extraordinary circumstances that

should prevent the transfer. (NY Assembly Debate on Bill A. 3009-c,

April 8, 2017 at 37-38).

Later in the debate, Assemblyman Lentol noted that the extraordinary circumstances standard "will be a high standard for the DA to meet...Transfer to family court should be denied only when 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" (NY Assembly Debate, April 8, 2017 at 39).

The new statute is the product of several years of political discussion and negotiation. In April 2014, Governor Andrew Cuomo created a Commission on Youth, Public Safety and Justice charged with developing a plan to raise the age of juvenile jurisdiction. The report, issued in January 2015, spearheaded an intense political discussion about juvenile justice reform. In particular, the report noted multiple reasons to consider reform, including the positive experiences of Connecticut and Illinois when they raised their age of criminal responsibility, the negative impact on adolescents of incarceration in adult jails, the disproportionate impact of juvenile incarceration on youth of color and the scientific research revealing that adolescent brains develop later than previously believed, resulting in impaired judgment and poor impulse control (Final Report of the Governor's Commission on Youth, Public Safety and Justice, 2015 Intro of Rep of Gov Comm on Youth, Public Safety and Justice at 1-2).

After this report was filed, Governor Cuomo included a juvenile justice reform package in his budget bill for 2015, 2016 and 2017. Although none of these packages were approved by the legislature, in 2017 the Assembly and Senate with the assistance of the Governor's office, negotiated a new version which was signed into law on April 10, 2017 (L 2017, ch 59 pt WWW). The new law provided a gradual phase-in beginning with 16 year old youth on October 1, 2018 and October 1, 2019 for 17 year old youth.

The final version of the law recognized what our jurisprudence has long acknowledged, that children are less culpable in the criminal context than adults and more amenable to change. Moreover, courts have repeatedly relied on the scientific studies showing that brain development is incomplete through late adolescence impairing the ability of young people to assess the risks [*4]and consequences of their acts.

These principles and the special status and characteristics of young defendants, are well documented in a series of decisions from the United States Supreme Court going back more than a decade. For example, in Roper v. Simmons, 543 US 551 [2005], the United States Supreme Court determined that the Eighth and Fourteenth Amendments prohibit execution of an offender who was under 18 at the time of the crime because juveniles have lessened culpability based on their lack of maturity. Additionally, the Court noted that youth are more susceptible to negative influences, are impetuous and comparably irresponsible (543 US at 569-570).

In 2010, the Supreme Court decided Graham v. Florida, 560 US 48 [2010] prohibiting life without parole for juvenile offenders for non-homicide cases as violative of the Eighth Amendment. The court again recognized the distinctions between juveniles and adult offenders and found that states must provide young offenders with an opportunity for release based upon increased maturity and rehabilitation.

In 2011, in the case of J.D.B v. North Carolina, 564 US 261 [2011] the Supreme Court held that the age of a child informs the decision of whether a suspect is in custody for Miranda purposes (see Miranda v. Arizona, 384 US 436 [1966]) because the unique characteristics of children render them more susceptible to influence.

The existence of salient characteristics in young defendants as a group, including recklessness and impetuousness, formed the basis for the court's holding in Miller v. Alabama, 567 US 460 [2012] that mandatory life without parole for juveniles violates the Eighth Amendment, and more recently in Montgomery v. Lousiana, 136 S. Ct. 718 [2016], which held that Miller is retroactive.

Furthermore, in assessing D.L's behavior it is appropriate to consider that at age 16, she is legal minor for virtually all purposes under New York law. She cannot vote, sign a binding contract, commence a law suit, select her own domicile or legally purchase alcohol or tobacco products. As such, New York has deemed her, and all youth under 18 years of age, legally incapable of making important decisions impacting their lives. Yet, New York's criminal law holds D.L. legally responsible for her behavior in this felony case unless the proceeding is transferred to the Family Court under the new procedures established by CPL Article 722.

It is also relevant to consider that if D.L.'s case remains in the Youth Part it will be adjudicated under the criminal law, which mandates incarceration in the NYS Department of Corrections. On the class C violent felony of attempted arson in the second degree, the minimum sentence is 3 ½ years in prison (Penal Law §70.02 [3] [b]).[FN3]

In assessing whether there are extraordinary circumstance in this case, the court finds no highly unusual or heinous facts. Nor is there any indication that D.L. will be unable to benefit from the services available in the Family Court. To the contrary, it was Inv. Klein's assessment that she needed to speak to a counselor and receive mental health assistance.

Moreover, the district attorney provides no justification for retaining the proceeding in the Youth Part and prosecuting D.L. under the criminal law. D.L had only just turned 16 years old at [*5]the time of the incident. If the crime had occurred just three weeks earlier, the case would have automatically gone to Family Court where she would have been treated as a juvenile delinquent. Since the crime is not a juvenile offender offense as defined by CPL §1.20 [42], D.L. would not have been criminally responsible for her actions (see Penal Law §30.00, the defense of infancy) and there would have been no legal possibility of criminal prosecution.

D.L's behavior is precisely the type of impulsive act done without thought of consequences, which is typical of young people. Had D.L. truly intended to burn the house and harm the inhabitants, a fire could have been set at night or in a manner where no one was aware of her actions. Instead, D.L. rang the complainant's door bell and announced her plan to set a fire because she was mad, thereby allowing the adult occupant to take action to curb her behavior.

After considering all of the relevant factors, including the age of the defendant at the time of the incident, the defendant's need for services available in the Family Court, the circumstances of the incident and the legislative intent of the statute that cases involving young defendants be transferred to the Family Court in all but the most extraordinary circumstances, the court finds that no extraordinary circumstances exist that warrant retaining D.L's case in the Youth Part. In making this determination, the court has also considered that there is no indication that D.L. presents a public safety concern to the community at large and that a sentence of incarceration in the New York State Department of Corrections is not required.

Therefore, the case is transferred to the Family Court and sealing is directed as required by statute.

The foregoing constitutes the Decision of the Court.

Dated at Rochester, NY this 27th Day of December, 2018.


Joan S. Kohout

Monroe County Youth Part Judge Footnotes

Footnote 1:The statute uses the terms transfer and removal interchangeably regarding the transfer of adolescent offender proceedings to the Family Court. Additionally, CPL 722.23 (1) (g) states that cases transferred pursuant to the section are not considered removals that would make the case ineligible for probation adjustment services under FCA 308.1. This is in contrast to removal proceedings for juvenile offenders under CPL Art. 725, which are exclusively described as removals and are ineligible for probation adjustment (see Family Court Act § 308.1 [13]).

Footnote 2:The Raise the Age law increases the age of criminal responsibility effective October 1, 2018 for 16 year old youth charged with misdemeanors other than vehicle and traffic misdemeanors. Effective October 1, 2019, the law applies to17 year old youth. The age of criminal responsibility was not raised for felonies, vehicle and traffic misdemeanors and infractions or violations or for 13-15 year old defendants charged as juvenile offenders.

Footnote 3:Other sentencing options may be available if she were adjudicated a youthful offender pursuant to CPL Article 720. However, incarceration in state prison would still be possible with a maximum indeterminate sentence of 1 1/3 to 4 years.