People v A.G.

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[*1] People v A.G. 2018 NY Slip Op 51963(U) Decided on December 20, 2018 Supreme Court, Queens County Gerald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2018
Supreme Court, Queens County

The People of the State of New York, Plaintiff,

against

A.G., Defendant.



FYC-XXXXX-18-001



For the Defendant: Samantha Seda, Esq., Legal Aid Society

For the People: Richard A. Brown, District Attorney Queens County (Ryan Nicolosi, Of Counsel)
Lenora Gerald, J.

Sixteen-year old defendant A.G. is charged in a felony complaint with one count of robbery in the first degree (Penal Law §160.15[4]), one count of robbery in the third degree (Penal Law §160.05), one count of grand larceny in the fourth degree (Penal Law §155.30[5]), one count of menacing in the second degree (Penal Law §120.14[1]), and one count of i/ppetit larceny (Penal Law §155.25), in connection with an alleged incident that occurred on October 16, 2018 (Case No. FYC-XXXXX-18-001).

Defendant is charged in an additional felony complaint with one count of robbery in the second degree (Penal Law §160.10[2](b)), one count of robbery in the third degree (Penal Law §160.05), one count of grand larceny in the fourth degree (Penal Law §155.30[5]), one count of petit larceny (Penal Law §155.25), and one count of criminal possession of stolen property in the fifth degree (Penal Law §165.40), one count of criminal possession of a weapon in the fourth degree (Penal Law §265.01[2]), and one count of unlawful possession of marihuana (Penal Law §221.05), in connection with an alleged incident that occurred on October 18, 2018 (Case No. FYC-XXXXX-18-001).

Defendant was arraigned in the Queens Adolescent Part (QAP) on October 19, 2018, and these matters were adjourned to October 25, 2018 for conference. On October 25, 2018, these cases were adjourned to November 30, 2018 for update. This Court determined that the accusatory instruments did not establish by a preponderance of the evidence, any of the three factors set forth in CPL §722.23(2)(c). Thus, the present cases were subject to removal to Family Court. The People filed a motion to prevent removal of these matters pursuant to CPL §722.23 on November 8, 2018. On November 30, 2018, these matters were adjourned to January 7, 2019 [*2]for a determination on removal to Family Court.

INSTANT MOTION

The People move to prevent removal of instant matters to Family Court on the ground of "extraordinary circumstances." The People argue that defendant has a history of crimes involving violent behavior and a "leadership role" in the commission of these crimes. The People further argue that removal would not be in the interest of justice and substantially diminish the safety and welfare of the community. Lastly, the People argue that as a matter of judicial efficiency, removal to Family Court would prevent the possibility of a global disposition.

Defendant argues that the Legislature did not contemplate global dispositions or potential plea bargains as it relates to removal to Family Court. Defendant argues that "extraordinary circumstances," though undefined in the statute, was intended for rare instances. In making its determination, defendant argues that mitigating factors should be considered. Defendant was born in Mexico, witnessed the abuse of his mother and grandmother, and is also seeking services to address his learning disability.

As a result of his arrests, defendant is in violation of his Family Court probation. Defendant requests a placement for his violation of probation for eighteen (18) months in a non-secure unspecified facility and removal of his cases before this Court to Family Court.

FINDINGS OF FACT

Defendant A.G. was adjudicated as a Juvenile Delinquent in Queens Family Court on May 22, 2018 for grand larceny in the fourth degree (Penal Law §155.30[5]) and sentenced to eighteen (18) months of probation.

While on Family Court probation, defendant was charged in a felony complaint with one count of robbery in the third degree (Penal Law §160.05), one count of criminal possession of stolen property in the fifth degree (Penal Law §165.40), in connection with an alleged incident that occurred on June 17, 2018 (Docket Number: CR-XXXXXX-18QN, pending in Part AP-6, Queens Criminal Court).

In October 2018, defendant was arrested for five (5) alleged incidents. Two (2) of defendant's pending matters are the subject of the present motion (Case Numbers: FYC-XXXXX-18-001 and FYC-XXXXX-18-001) because they occurred after the effective date of October 1, 2018 for the Adolescent Offender Statute (Penal Law §1.20[44]) and New York's Raise the Age Legislation.

The three (3) alleged incidents not subject to removal to Family Court are as follows:

Defendant is charged in a felony complaint with two counts of robbery in the second degree (Penal Law §§160.10[1] and 160.10-[2](A)), one count of robbery in the third degree (Penal Law §160.05), one count of grand larceny in the fourth degree (Penal Law §155.30[5]), assault in the third degree (Penal Law §120.00[1]), petit larceny (Penal Law §155.25), harassment in the second degree (Penal Law §240.26[1]), in connection with an alleged incident that occurred on September 14, 2018 (Docket Number CR-XXXXXX-18QN).

Defendant is charged in a felony complaint with one count of robbery in the first degree (Penal Law 160.15[3]), one count of robbery in the third degree (Penal Law §160.05), and one count of criminal possession of stolen property in the fifth degree (Penal Law §165.40), in connection with an alleged incident that occurred on September 17, 2018 (Docket Number CR-XXXXXX-18QN).

Defendant is charged in a felony complaint with one count of grand larceny in the fourth degree (Penal Law §155.30[5]), and petit larceny (Penal Law §155.25), in connection with an alleged incident that occurred on September 28, 2018 (Docket Number CR-XXXXXX-18QN).

Additionally, defendant is charged in a misdemeanor complaint with one count of menacing in the second degree (Penal Law §120.14[1]) and one count of harassment in the second degree (Penal Law §240.26[1]), in connection with an alleged incident that occurred on September 18, 2018 (Docket Number CR-XXXXXX-18QN, pending in Part AP-5, Queens Criminal Court).

CONCLUSIONS OF LAW

New York's Raise the Age legislation took effect on October 1, 2018. This legislation sought to raise the age of criminal responsibility and to advance the goal of rehabilitation for youth. Raise the Age Legislation created a new category of defendant, "adolescent offenders" (currently, sixteen (16) year olds. Seventeen (17) year olds will be added as of October 1, 2019). CPL §1.20[44]. It also created a superior court Youth Part with exclusive jurisdiction over adolescent offenders and juvenile offenders for initial arraignment and subsequent proceedings. Upon arraignment in the Youth Part, the Court shall review the accusatory instrument and other relevant factors to determine if one or more of the following are present: "(i) the defendant caused significant physical injury to a person other than a participant in the offense; or (ii) the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense; or (iii) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the penal law." CPL §722.23[2](b) & (c). If none of the above-mentioned factors are present, the case is eligible for removal to Family Court. To prevent removal, a motion must be made by the People demonstrating "extraordinary circumstances." "The court shall deny the motion to prevent removal of the action in youth part unless the court makes a determination upon such motion by the district attorney that extraordinary circumstances exist that should prevent the transfer of the action to family court." CPL § 722.23[1](d). The statute does not define "extraordinary circumstances."

At bar, defendant is alleged to have committed several offenses involving robbery and grand larceny. All of these offenses were allegedly committed while he was on Family Court Probation. This Court finds that the instant matters as well as defendant's numerous pending cases constitute an extraordinary circumstance such that removal should be prevented.

Assuming arguendo these matters are removed to Family Court, defendant would still have five (5) matters in Queens Supreme Court and Queens Criminal Court pending disposition. This could lead to the likelihood of different and/or duplicative judicial processes and outcomes, which would not be in the interest of justice for the community or the defendant. Moreover, a global disposition of all matters in the Youth Part would provide a consistent outcome for defendant's potential rehabilitation.

Therefore, this Court finds that extraordinary circumstances exist such that removal would not be in the interest of justice.

Accordingly, these matters shall remain in the Queens Adolescent Part (QAP).

The People's motion is granted.

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



Dated: December 20, 2018

LENORA GERALD, A.J.S.C.