People v R.M.

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[*1] People v R.M. 2018 NY Slip Op 28429 Decided on December 14, 2018 County Court, Westchester County Blackwood, 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 14, 2018
County Court, Westchester County

The People of the State of New York, Plaintiff,

against

R.M., As An Adolescent Offender (D.O.B. 09/06/2002), Defendant.



FYC 7005-18



For Defendant:

Michael Goldstein, Esq.

11 Hanover Square, 20th Floor

New York, New York 10005

For the People:

Hon. Anthony a Scarpino, Jr., District Attorney

Westchester County District Attorney's Office

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York

Attn: ADA Mary Ann Liebowitz
Helen M. Blackwood, J.

This defendant is charged as an Adolescent Offender ("AO") in the Youth Part of Westchester County with one count of Aggravated Cruelty to Animals, a violation of section 353-a of the Agriculture & Market Law of the State of New York, by way of a felony complaint. This decision and order is issued pursuant to a motion made by the People to prevent the removal of the case to Family Court under section 722.23(1) of the Criminal Procedure Law ("CPL").

Findings of Fact

The felony complaint alleges that on or about October 22, 2018, between the hours of 3:00 pm and 11:59 pm, the defendant intentionally killed a 15-year old cat named "Chica", the companion animal of Cheryl Accardi. At the time, the defendant was living with Ms. Accardi, a long-time friend of the defendant's family, who agreed to take the defendant into her home [*2]several months earlier. The complaint goes on to describe that the defendant wrapped the cat in a towel and suffocated it by sitting on top of it. The cat died after struggling for approximately ten minutes. The complaint alleges that the next day, the defendant sliced open the cat and removed its small intestine, large intestine, pancreas, and spleen, and kept them in a container in her room. The defendant was arrested several days later once the cat's body was located in a bag in the woods behind Ms. Accardi's home after the cat was discovered missing.

The defendant was arraigned on the felony complaint in the Youth Part on November 19, 2018. On consent of both sides, the defendant was remanded to Bronx Lebanon Hospital for a psychiatric examination pursuant to Article 730 of the Criminal Procedure Law. The defendant was returned to the Youth Part on Thursday, December 6, 2018, at which time the People filed the current motion. The defendant filed her opposition to the motion on December 12, 2018.

The defendant spent approximately 17 days at Bronx Lebanon Hospital and while there, was evaluated and treated for mental illness. A six-page report, entitled "Psychiatric Summary," dated December 6, 2018, and signed by Dr. J.A. Sanchez-Lacay, Director of the Child and Adolescent Inpatient Unit of the hospital, and Dr. Monica Badillo, Psychiatry Fellow of the same unit, was issued to the court. The court also received a six-page "Psychological Evaluation," signed by Sagal Ahmen, M.A., Shana Grover, PhD, and Ali Khadivi, PhD and Chief of Psychology. Both reports were attached to defendant's opposition to the motion as Exhibit C.

According to the Psychiatric Summary, the defendant "is a 16 year old girl of Indian decent, with history of Major Depressive Disorder" and arrived at the hospital on November 19, 2018 (Affirmation in Opposition, Exhibit C). She had been discharged from New York Presbyterian earlier in the day and was mandated to Bronx Lebanon "for psychiatric evaluation due to suicidal ideations" (id). The summary reports that the defendant described her mood as "'numb, empty'" and characterizes her affect as "flat/blunted". As to the events leading up to the current allegations, the Psychiatric Summary of the evaluation of the defendant states:

She described a history of feeling depressed and anxious for 2 years and at times, has been "aggressive and impulsive". During continued visits with mom in the last year and a half, mom has had severe bug infestations and Respondent urged her to take care of the issues. She became more depressed as her mom was not taking care of herself. During the last 3 months she has felt "emotionally disconnected," "I don't feel anything, I feel numb, empty; I didn't care about anyone not my family or friends." In July 2018 she requested for her sister to remove boxes from her room, sister said no, and Respondent impulsively choked and attempted to strangulate [sic] her sister. She was removed from the home and sent to a family friend's home of many years in Peekskill . . .(id).

The family friend referred to in the report with whom the defendant was sent to live is Cheryl Accardi, the owner of the deceased cat.

As to the defendant's past psychiatric history, the summary outlines that the defendant has a history of being in therapy for the past two years with a private practitioner in Queens. At age seven, the defendant ran away from home with a knife to kill herself, after which she was hospitalized at Jamaica Hospital. She was next hospitalized at Zucker Hill for three weeks after a suicide attempt and diagnosed with depression. The last hospitalization was at New York Presbyterian after the recent allegations were discovered. She had been going to the Abbott House Peekskill Road Clinic on an outpatient basis since August of 2018.

The defendant has had three suicide attempts. The first was in September of 2017, when she attempted to cut her throat. The attempt was interrupted by the defendant's father. In December of the same year, the defendant attempted to cut her arm with a kitchen knife, and once again, was unsuccessful. The last attempt was in March of 2018, when the defendant taped the car exhaust pipe in an attempt to suffocate herself. Her attempt was unsuccessful due to the fact that newer automobiles are designed to prevent such an event.

The summary goes on to state that the defendant denies the use of an alcohol, tobacco products, and any illicit substances, including marijuana. It also indicates that although the defendant admits to stealing make-up from Sephora, this is the only time she has been involved with the police in her life.

In detailing the defendant's family history, the summary states:

Per father and respondent, her biological mother has history of mental illness, possibly ADHD history, paranoia (camera and government watching the children, and risky impulsive behaviors, neglect toward children), and Borderline Personality Disorder. Biological father admitted to history of dysthymia, depression, anger issues, and anxiety (id).

Additionally, it is reported that the father "was verbally abusive and would throw things in the home out of anger" and that as a result, the father left the family home when the defendant was four years-old at the request of Administration for Children's Service ("ACS") (id). This was when the defendant ran away from home and was hospitalized for the first time. Eventually, the defendant and her two younger siblings were removed from their mother's house and returned to the custody of their father in 2012 after it was reported to ACS that the mother was neglecting the children "medically and physically, not feeding them and leaving respondent alone to care for her siblings at the ages of 8, 5, and 2 years old" (id).

Academically, the defendant is described as an 11th grader at La Guardia High School, in regular classes, and Advanced Placement classes. She is reported to have an average in the nineties.

During the course of her treatment at Bronx Lebanon Hospital, the summary expresses that the defendant "expressed passive suicidal ideations without plan or intent" (id). While she was "initially guarded with staff and peers and was isolated interacting with select peers," "[h]er mood improved and she was better able to participate in school in which she excelled" once she was started on Aripiprazole (id). By the end of her stay at the hospital, the defendant was reported to have "improved significantly," as she had "implemented coping skills of deep breathing and walking away" and had "been compliant with medications," requiring no "emergent intramuscular medications" or "emergent codes" (id).

The summary concludes by diagnosing the defendant with "Major Depressive Disorder, Recurrent; Dysthymic Disorder; Conduct Disorder; Antisocial Personality traits; Borderline Personality traits" (id). As for the doctors' recommendations upon discharge, the summary states, "[i]n conclusion, based on the respondent's current symptoms and hospital course, we recommend continued individual therapy, Cognitive Behavior Therapy, Dialectical Behavioral Therapy, and continued treatment in psychopharmacology" (id).

After the defendant was discharged from Bronx Lebanon Hospital and returned to court, she was remanded to the custody of Capital District Youth Detention Facility on consent of both [*3]parties. She has been there since December 6, 2018.

Findings of Law

The People argue that "extraordinary circumstances" exist, requiring the case to remain in the Youth Part. The analysis they offer is based upon the factors listed in CPL §722.22, the statute authorizing the removal of a juvenile offender to family court, which the People describe as a "useful guide" in a "parallel statute" (Affirmation in Support, ¶18). In attempting to establish extraordinary circumstances, the People rely heavily on the details of the defendant's behavior, and describe her crime to be "unusual, brutal, tortuous, and depraved" (id, at ¶32). Additionally, the People contend that given the facts of the case, combined with the defendant's significant mental health history,"the dispositional guidelines set for in the Family Court Act limit the Family Court from mandating treatment for defendant for the duration and extent necessary to safeguard her, and others" (id, at ¶22).

The defendant's opposition urges the court to deny the People's application and characterizes the People's reliance on CPL §722.22 as "completely misplaced," noting that the factors to be considered when determining whether to remove a juvenile offender to family court are "concerned with whether mitigating circumstances are present to justify the transfer of an extremely serious crime to family court," not "whether extraordinary circumstances exist that override the presumption that the child's case should be removed," as is the issue here (Affirmation in Opposition, ¶4). With respect to the nature of the crime, the defendant attempts to defeat the People's argument by emphasizing that it is the very nature of the alleged criminal conduct that makes it the crime of Aggravated Cruelty to Animals, an offense mandated to be removed from the Youth Part and presided over in Family Court. Finally, the defendant directs the court to the reasoning behind the creation and implementation of the "Raise the Age" legislation, relying on a statement issued by the New York City Bar in support of the change in the law, which underscores the challenges that a youth faces after having been prosecuted and convicted in criminal court and the fact that the new legislation attempts to ease that burden.

New York's "Raise the Age" legislation became effective on October 1, 2018, and was created to "raise the age of adult criminal responsibility from sixteen to eighteen so that youth who are charged with a crime may be treated in a more age appropriate manner" (New York State Assembly Memorandum In Support of Legislation, A3668A, 2018). The new legislation takes into account scientific evidence indicating that children's brains are not fully developed until after the age of eighteen and that as a result, "youths who engage in criminal conduct often do not have the same level of understanding of their actions as an adult" (id). Additionally, the research shows that "the penalties and longer sentences often imposed by adult criminal courts do not reduce the recidivism rate of youth who commit crimes, compared to similarly situated youth who are adjudicated in a juvenile court system" (id). It is under this rationale, and within the guidelines of CPL §722.23, that the court must determine the within application.

CPL §722.23(1)(a) requires that the court order the removal of an action to family court following arraignment when that action involves a crime other than a class A felony, a violent felony, or an offense contained in the vehicle and traffic law, "unless, within thirty calendar days of such arraignment, the district attorney makes a motion to prevent removal of the action" (CPL §722.23[1][a]). The motion must be made in writing and on notice to the defendant, who must be given the opportunity to reply. Finally, the court must deny the motion unless it finds that [*4]"extraordinary circumstances exist that should prevent the transfer of the action to family court" (CPL §722.23[1][d]). The term "extraordinary circumstances" is undefined and as such, the court is left to construe that language based upon its own discretion and experience.

Preliminarily, the court is unpersuaded that the rubric under CPL §722.22 is the appropriate guide for the current analysis. Indeed, the presumption is that a juvenile offender should be prosecuted in an adult court, as opposed to family court, given the serious nature of his or her designated felony, and the adult court's mechanisms to address such criminal behavior. Conversely, given the plain language of CPL §722.23, it is unmistakable that the presumption is that an adolescent offender charged with a non-violent felony be removed to family court, a court designed to offer alternative services to meet the specific needs of each individual youth. For that reason, the "interest of justice" considerations laid out in CPL §722.22 are inapplicable to this inquiry.

Therefore, the court considers what it deems to be the two major factors in assessing whether extraordinary circumstances exist - the nature of the criminal behavior and the defendant's mental health status. First addressing the nature of the criminal behavior, the court agrees with the defendant that it is the nature of the crime itself that establishes the elements of Aggravated Cruelty to Animals ("NY AGRI & MKTS"). Agriculture and Markets Law §353-a(1) defines "aggravated cruelty" as conduct that "(i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner" (NY AGRI & MKTS §353-a[1]). The defendant's conduct referred to by the People in their argument that extraordinary circumstances exist, in fact, amounts to the "especially depraved or sadistic manner" contemplated by the statute (see People v. Napoli, 2018 WL 6364009 [3d Dept] (conviction of aggravated cruelty to animals was not against the weight of the evidence, which established that defendant shot a healthy dog in the shoulder and the chest with a shotgun, and, according to two veterinarians, the dog would have survived "for some time" after being shot in "immense pain" while it was dying of blood loss and asphyxiation); People v. Moors, 140 AD3d 1207 [3d Dept. 2016] (finding that there was legally sufficient evidence to support the conviction of aggravated cruelty to animals where the defendant shot a dog using a small field tip arrow, causing the dog to suffer for at least 20 minutes while she was "screeching" and "flopping"). Indeed, without the "especially depraved or sadistic manner" of this crime, and the fact that the deceased cat was a companion animal, the underlying facts would establish the elements of Overdriving, torturing and injuring animals; failure to provide proper sustenance, a violation of section 353 of the Agriculture and Markets Law, and a class "A" misdemeanor. Therefore, the court does not find the nature of the crime to be the "extraordinary circumstances" contemplated by the statute.

Finally, the court is of the opinion that the mental health of the defendant weighs in favor of transferring the case to Family Court, not against it. The People, and of course, the defendant, have both indicated their desire to resolve this case with some form of treatment for the defendant. Both agree that a facility offering intensive inpatient treatment, and a secure environment would be the appropriate outcome for this case. Therefore, the recognition that incarceration is not fitting for this defendant, but rather a therapeutic, albeit secure, setting is, militates toward the transfer to Family Court. To be sure, the adult setting is no more adept at finding the appropriate placement for the adolescent and monitoring her progress and treatment, [*5]two tasks that probation, available equally to Family Court as to the Youth Part, will be vital in achieving.

Thus, while this court decidedly acknowledges the emotional and violent nature of this crime and the significant impact it has undoubtedly had on Ms. Accardi and her family, it is constrained by the language of the statute and the philosophy behind it in determining that the facts and circumstances of this case do not rise to the level of "extraordinary circumstances" giving the court the limited authority to remove it to Family Court. Rather, the court is of the opinion that this defendant will benefit from the offerings of Family Court and is confident that the Family Court is well-equipped to meet her therapeutic and supervisory needs.

Therefore, the People's motion is denied in its entirety.

This constitutes the opinion, decision, and order of this Court.



Dated: December 14, 2018

White Plains, New York

HON. HELEN M. BLACKWOOD

Westchester County Court, Youth Part

Acting Family Court Judge