People v T.R.

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[*1] People v T.R. 2018 NY Slip Op 51976(U) Decided on December 21, 2018 Family Court, Erie County Carter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2018
Family Court, Erie County

The People of the State of New York, Plaintiff,


T.R., Defendant.


James Marra, Esq., (Assistant District Attorney)

Lana V. Tupchik, Esq., (for the Defendant)
Kevin M. Carter, J.

The People having moved pursuant to Criminal Procedure Law, Article 722, § 722.23(1), et seq. for an order preventing removal of this action to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion, dated December 12, 2018, Affirmation of James Marra, Esq. (Assistant District Attorney), dated December 12, 2018, in support of the motion, Reply Affirmation & Memorandum of Law in Opposition of the Motion to Prevent Removal by Lana V. Tupchik, Esq., dated December 18, 2018, on behalf of T.R. ("Defendant"), and oral argument having been held on December 20, 2018, and due deliberation having been had, the Court finds the following:

This action was commenced by way of an accusatory instrument which charged Defendant with Making a Terroristic Threat, a Class D Felony, as defined by Penal Law § 490.20(1). It alleged that the crime occurred on November 13, 2018.

Defendant was born on December 5, 2001. He was brought before Youth Part because he was sixteen years old when the crime is alleged to have been committed. Thus, by law Defendant is considered an "Adolescent Offender."

Defendant was arraigned on November 13, 2018. He was released on his own recognizance. Following the arraignment, the Court determined that the People could not meet [*2]the requirements of CPL § 722.23(2)(c). The Court ordered this action to proceed in accordance with CPL § 722.23(1).

On December 12, 2018, the People filed this motion pursuant to CPL §722.23(1)(b) to prevent removal to family court. Annexed to the People's motion is an Affirmation of James Marra, Assistant District Attorney (the "Affirmation"). Attached to the Affirmation is a Felony Complaint which charges Defendant with one count of Falsely Reporting an Incident in the 2nd Degree, a Class E Felony, contrary to the provisions of § 240.55(1) of the Penal Law. The People apprised the Court in its moving papers of its intent to file the accusatory instrument and requested that same be considered in the application to prevent removal.

On December 20, 2018, Defendant was arraigned on the charge of Falsely Reporting an Incident. Thereafter, the People moved to dismiss the original charge of Making a Terroristic Threat. The motion was granted without objection from Defendant. The Court then determined, as it relates to the new charge, that the People could not meet the requirements of CPL § 722.23(2)(c). The Court ordered this action to proceed in accordance with CPL § 722.23(1).

Upon arraignment, it was agreed that the new Felony Complaint would be made a part of the record on motion. It was further agreed that the parties would proceed on the papers.

The factual part of the Felony Complaint states "on information and belief.", the following:

That on November 13, 2018 at approximately 11:00am while at Williamsville North High School, 1595 Hopkins Road, in the Town of Amherst, County of Erie, State of New York, [T.R.] delivered a note to school administrators that stated, "I'm going to bomb this school today at 12 [dated] 11/13/18." [T.R.] claimed he found it in a stairwell. [T.R.] delivered the note knowing that the information contained therein was false and/or baseless because he conspired with two other students to write the note: 1) Video surveillance from the cafeteria depicts [T.R.] acting in concert with two other students to create the fake bomb threat, and 2) [T.R.] confessed to Amherst Police Detectives. Williamsville North High School was placed in a state of lockdown, with students and teachers required to shelter in place, for a period of nearly two (2) hours, until authorities determined the threat conveyed in the note was not credible.

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."

In this case the Affirmation and Felony Complaint contain hearsay claims and do not contain allegations of "sworn fact" based upon personal knowledge. As such the contents therein do not fall within the mandate of CPL § 722.23(1)(b) and the motion to prevent removal should be denied for this reason.

Additionally, CPL § 722.23(1)(d) provides that a motion to prevent removal shall be denied unless the district attorney establishes the existence of "extraordinary circumstances" to prevent transfer. The Raise the Age legislation does not define extraordinary circumstances. Thus, extraordinary circumstances must be determined on a case by case basis. We can conclude from its ordinary meaning that it refers to that which is "very unusual" or "remarkable." The Court, in its discretion, should look for circumstances that go beyond what is regular and foreseeable in the normal course of events.

Here, we look first to the Felony Complaint which served as the basis for commencement of this action and set forth in detail the factual allegations of the crime charged. It was signed [*3]under penalty of perjury by the complainants. The factual part seems to support each element of the alleged offense. It appears to be sufficient on its face. And while the Felony Complaint seems to satisfy the requirements of CPL § 722.23(1)(b), the Court does not find the filing of a sufficient accusatory instrument setting forth the behavior of Defendant to be in-itself extraordinary circumstances sufficient to prevent removal of this action.

Since the factual part of the accusatory instrument does not in-itself rise to the level of extraordinary circumstances, the Court will consider the following events set forth in the Affirmation which are claimed to be the results of Defendant's alleged behavior:

(1) That Defendant conspired with two other children to falsely threaten the existence of a bomb in a high school with nearly one thousand students;

(2) That Defendant failed to accept responsibility when confronted by the investigating officer; and

(3) Defendant's conduct affected thousands of innocent lives by placing them in fear and causing them emotional harm.

It should be noted that the "two other children" to which the People refer were charged by way of juvenile delinquency petitions which are pending in Erie County Family Court. Moreover, conspiring with these other children is hardly extraordinary. As for the claim that there were nearly one thousand students at the school, the Court concludes that extraordinary circumstances should not be based solely upon the sheer number of individuals affected. Here the Court considers the alleged number of students to be a factor as well as the actual affect upon the individuals involved. However, the actual effect on the individuals involved cannot be determined solely upon review of the accusatory instrument and Affirmation.

Defendant's failure to accept responsibility or "throw himself at the mercy of the investigating officers with an expansive and total mea culpa" is hardly irregular or unforeseeable. To the contrary, it is very common that a sixteen-year-old child would fabricate a story or distance himself from involvement in a circumstance such as this. Defendant's failure to take immediate responsibility is not an extraordinary circumstance.

Undoubtedly, the Court places a premium on the emotional well-being of members of our society who should not have to endure the fear of bomb threats or other harm. The affect that criminal behavior has on the emotions of others should not be taken lightly. Nor does this Court believe that society should simply get accustomed to the behavior. However, there is not anything extraordinary regarding this circumstance. While it may be that Defendant's conduct affected thousands of innocent lives by placing them in fear and causing them emotional harm which could perhaps be considered extraordinary circumstances, it would be mere speculation as the Court does not have facts to conclude that this is actually the case that rises to the level of extraordinary circumstances.

Based upon the foregoing, the Court concludes that extraordinary circumstances do not exist to prevent the transfer of this action to family court. Thus, the People's motion to prevent removal is denied.

Dated: December 21, 2018