People v J.R.

[*1] People v J.R. 2019 NY Slip Op 51825(U) Decided on October 22, 2019 County Court, Nassau County Singer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2019
County Court, Nassau County

The People of the State of New York, Plaintiff,

against

J.R., Adolescent Offender.



FYC-xxxxx-19



Hon. Madeline Singas, Nassau County District Attorney, By: Gregory Murphy, Esq.

Dana Grossblatt, Esq., Attorney for the Adolescent Offender
Conrad D. Singer, J.

The following papers were read on this Motion:

The People's Notice of Motion Opposing

Removal and Supporting Papers 1

The Adolescent Offender's Opposition to People's Motion 2

The defendant in this matter, J.R. (D.O.B. 00/00/2003) is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. The People have moved, by Notice of Motion dated October 1, 2019, for an Order pursuant to CPL § 722.23(1) directing that this matter remain in and not be removed from the Youth Part to the Family Court in Nassau County due to the existence of "extraordinary circumstances". (CPL § 722.23[1][d]). The AO filed opposition to the People's motion.

The People's motion is determined as follows:

The AO is charged, by way of a felony complaint with two counts of Robbery in the First Degree (Penal Law §§ 160.15[3] and 160.15[4]), a class B Felony; three counts of Robbery in the Second Degree (Penal Law §§ 160.10[1]; 160.10[2(a)]; and 160.10[2(b)]), a class C Felony; one count of Attempted Robbery in the First Degree (Penal Law §§ 110.00/160.15[3]), a class C Felony; one count of Robbery in the Third Degree (Penal Law § 160.05), a class D Felony; three counts of Attempted Robbery in the Second Degree (Penal Law §§ 110.00/160.10[1]; 110.00/160.10[2(a)]; and 110.00/160.10[2(b)]), a class D Felony; one count of Assault in the Second Degree (Penal Law § 120.05[2]), a class D Felony; one count of Grand Larceny in the Fourth Degree (Penal Law § 155.30[6]), a class E Felony; one count of Attempted Robbery in the Third Degree (Penal Law §§ 110.00/160.05), a class E Felony; one count of Attempted Assault in the Second Degree (Penal Law §§ 110.00/120.05[2]), a class E Felony; and one count of Assault in the Third Degree (Penal Law § 120.00[1]), a class A [*2]Misdemeanor.

The charges filed against the AO arise from his alleged participation in a robbery that occurred at about 6:54 PM, on or about March 25, 2019, at a location in U., N.C., New York. The AO was arraigned on the Felony Complaint on August 27, 2019, in the Youth Part of the County Court, Nassau County. At the time that he was arraigned on the charges in this matter, the AO was already in custody for a different matter pending in the Youth Part, having been indicted and charged with, inter alia, Attempted Murder in the First Degree, in connection with an incident alleged to have occurred on March 13, 2019 [Docket No. IND-xxxx-19/001]. The defendant was fifteen years old at the time of that alleged incident, and thus is charged as a Juvenile Offender ["JO"] in the preceding matter.

The People's motion to prevent removal of this matter is filed pursuant to CPL § 722.23. Such governs the removal of adolescent offenders from the Youth Part to the Family Court, and provides, in pertinent part, that within thirty calendar days of an AO's arraignment the court "shall" order the removal of the action to the family court "unless the district attorney makes a motion to prevent removal" [CPL § 722.23(1)] and the court determines "upon such motion by the district attorney that extraordinary circumstances exist that should prevent the transfer of the action to the family court". (CPL § 722.23[1(d)]).[FN1]

The People's motion consists of an affirmation from Assistant District Attorney Gregory Murphy, Esq. (Affirmation in Support of Motion Opposing Removal Pursuant to CPL § 722.23 ["Murphy Aff. in Support"]). Attached to ADA Murphy's affirmation is a copy of the felony complaint in this matter. ("Ex. A to Murphy Aff. in Support"). The People contend that in this case, the AO "actively participated with others in the violent assault and robbery of a sixteen-year-old victim", that the AO, together with others, waited for the victim to exit a store and then, in front of numerous witnesses, began physically striking the victim and stealing his property. (Murphy Aff. in Support, ¶ 3). The People further contend that the victim was eventually able to escape with the assistance of his mother, who was threatened and injured in the process. (Murphy Aff. in Support, ¶ 3).

It is further contended that the assault and robbery in this case was, "at least in-part", motivated by gang-related disputes stemming from prior gang member homicides. (Murphy Aff. in Support, ¶ 3). Specifically, it is alleged that on March 13, 2019, the AO's friend had been shot to death in H., New York, and that the victim in this case was targeted due to his having insulted the memory of the decedent. (Murphy Aff. in Support, ¶ 3).

The People argue that extraordinary circumstances exist based on two grounds. They argue that the first basis for finding extraordinary circumstances is the AO's "criminal history and character", including his other pending matter in the Youth Part which arises from his [*3]alleged involvement in a gang-motivated shootout captured on surveillance video. (Murphy Aff. in Support, ¶ 4[a]).

They argue that the second basis for finding "extraordinary circumstances" is "the impact of removal on the safety and welfare of the community as well as public confidence in the criminal justice system". (Murphy Aff. in Support, ¶ 4[b]). The People argue that, while the victim in this case was able to escape without suffering serious injury, the AO's actions in both cases have put individuals at risk of serious injury and/or death, that his gang affiliation and brazen violent criminal conduct present a serious risk to the safety and welfare of the people of the Village of H., and that removal of this case will undermine confidence in the criminal justice system as it will be perceived as one more instance of a violent gang member escaping just punishment due to his age. (Murphy Aff. in Support, ¶ 4[b]).

The AO's opposition to the People's motion consists of an affirmation from his counsel. (Affirmation of Dana Grossblatt, Esq. ["Grossblatt Aff. in Opposition"]). Defense counsel first argues that while the police and the ADA have viewed video surveillance depicting the incident in this matter, and have had "the luxury" of reviewing other discovery, including speaking with civilian and police witnesses and reviewing paperwork created by the police, as well as the witnesses' supporting depositions, the defense has not been given an opportunity to review the same. (Grossblatt Aff. in Opposition, ¶ 2). The AO's counsel requests an order directing the People to turn over such discovery material, in light of the forthcoming discovery rules that will require a "presumption of openness". (Grossblatt Aff. in Opposition, ¶ 3).

The defense argues that the People have failed to establish the existence of "extraordinary circumstances" which would preclude this matter from being removed to the family court. Counsel argues that "extraordinary circumstances" has been held to mean "exceptional to a very marked extent, most unusual and far from common" and that, in this case, the People have provided minimal information about the AO's involvement in the alleged robbery and assault. (Grossblatt Aff. in Opposition, ¶¶ 8, 12). Defense counsel further argues that the People discuss with greater detail the allegations in the AO's other pending case in an effort to offset the weaknesses and contradictory facts involved in this robbery case and that, in any event, the charges against the AO in the other pending case are still only allegations, and the AO stands before this Court without any convictions. (Grossblatt Aff. in Opposition, ¶ 10). Defense counsel argues that, overall, the people have failed to meet the "significant" standard of "extraordinary circumstances" with respect to this matter. (Grossblatt Aff. in Opposition, ¶ 13).

FACTUAL ALLEGATIONS

Based on the allegations in the felony complaint and in ADA Murphy's affirmation in support of the People's motion, on or about March 25, 2019, at about 6:54 PM, at a location in U., N. C., New York, the AO "actively participated" with numerous others in the "violent assault and robbery of a sixteen-year-old victim". (Murphy Aff. in Support, ¶ 3; Ex. A to Murphy Aff. in Support). The People contend in their motion that this alleged assault and robbery was at least partially motivated over gang-related disputes stemming from gang members' homicides that had occurred. (Murphy Aff. in Support, ¶ 3). They further contend that the AO is a self-admitted Crip gang member and that on March 13, 2019, the AO's friend had been shot to death in H., NY (Murphy Aff. in Support, ¶ 3). According to ADA Murphy, the AO and others targeted the victim in this alleged assault and robbery because he had insulted the memory of the AO's deceased friend. (Murphy Aff. in Support, ¶ 3).

ADA Murphy contends that the AO and the others waited for the victim to exit a store [*4]that he was in and then, in front of numerous witnesses, began physically striking him and stealing his property. (Murphy Aff. in Support, ¶ 3). It is alleged in the felony complaint that an unknown suspect threw a garbage can which hit the sixteen-year-old victim, that the victim then began defending himself and that he ended up on the ground being punched and kicked numerous times by the AO and the others. (Ex. A to Murphy Aff. in Support).

It is asserted in the People's motion that the victim was eventually able to escape with the assistance of his mother, who was threatened and injured in the process. (Murphy Aff. in Support, ¶ 3). The felony complaint alleges that the victim's mother got him into the safety of their car, and that the AO and all suspects then ran up to the vehicle and started punching the windows; thereafter the AO's co-defendant simulated pointing a firearm through his sweatshirt at the victims, which put the victims in fear for their safety. (Ex. A to Murphy Aff. in Support). It is further alleged in the felony complaint that as a result of the robbery and assault the victim suffered a contusion to his right forehead, his mother suffered a swollen ankle and both mother and son complained of substantial pain. (Ex. A to Murphy Aff. in Support). The People contend in their motion that the victims escaped without suffering serious injury, but the AO's actions in this case and the preceding pending case put individuals at risk of serious injury and/or death. (Murphy Aff. in Support, ¶ 4[b]).

CONCLUSIONS OF LAW

The People's motion to prevent removal of the AO's cases is filed pursuant to CPL § 722.23(1), which essentially expresses presumption in favor of removal, as it mandates the Court to deny the People's motion unless the Court determines upon their motion that "extraordinary circumstances" exist to prevent removal of the matter from Family Court. (CPL § 722.23[1][d] ["The court shall deny the motion to prevent removal "]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2018 Electronic Update, CPL§ 722.10).

The term "extraordinary circumstances" is not defined under CPL § 722.23. Accordingly, in this case, as with any case involving a question of statutory interpretation, the Court's "primary consideration is to ascertain and give effect to the intention of the Legislature". (People v. Thomas, 33 NY3d 1, *5 [2019]; see also People v. Roberts, 31 NY3d 406, 418 [2018]). "Because 'the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof". (People v. Thomas, supra, 33 NY3d at *5-6; People v. Roberts, supra, 31 NY3d at 418).

In doing so, the dictionary definition of "extraordinary" is a "useful guidepost" in determining the "ordinary" and "commonly understood" meaning of "extraordinary circumstances". (People v. Andujar, 30 NY3d 160, 163 [2017]; People v. Ocasio, 28 NY3d 178, 181 [2016]). "Extraordinary" has been defined as "going beyond what is usual, regular, or customary", and "exceptional to a very marked extent". (see Merriam-Webster Online Dictionary, "extraordinary" [https://www.merriam-webster.com/dictionary/extraordinary]). Black's Law Dictionary defines the term "extraordinary circumstances" as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event". (10th ed. 2014). Using the ordinary and commonly understood meaning of "extraordinary", CPL § 722.23(1)(d) requires the Court to deny the People's motion unless they prove the existence of a set of "exceptional" and "highly unusual" facts which oppose removal of the case to the family court. (See CPL § 722.23[1][d]).

Further insight on the legislative intent is obtained from this Court's review of the [*5]legislative history of the RTA legislation. (People v. Roberts, supra, 31 NY3d at 423; see also People v. Andujar, supra, 30 NY3d at 166 ["While 'the words of the statute are the best evidence of the Legislature's intent,' legislative history may also be relevant as an aid to construction of the meaning of words'"]). In this case, the legislative history supports an interpretation of "extraordinary circumstances" as being a highly unusual and exceptional set of facts.

In a legislative debate held in April of 2017 before the RTA legislation was enacted into law, legislators extensively discussed the intended meaning of the "extraordinary circumstances" standard. It was revealed that many of the legislators who developed and promoted the RTA bill wanted all cases involving sixteen and seventeen year old's to be filed and heard exclusively in the Family Court, and that the mechanism wherein felony cases would start in the Youth Part, subject to removal to Family Court, was part of a compromise to reach agreement on the legislation. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], p. 37).

Thus, the statutory language favoring the denial of a motion by the District Attorney's office to prevent removal evinces the legislators' intent that "the overwhelming bulk" of cases would be "promptly transferred from the adult court to the family court". (Assembly Record, pp. 37). The legislators repeatedly stated that they intended the "extraordinary circumstances" requirement to be a "high standard" for the District Attorney's office to satisfy and confirmed that "denials of transfer to the family court should be extremely rare". (Assembly Record, p. 38-39). It was stated that "[t]ransfer to the 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". (Assembly Record, p. 39).

Legislators declined to provide "firm examples" of "extraordinary circumstances." (Assembly Record, p. 39). Instead, it was stated that Judges "must look at all the circumstances of the case, as well as the circumstances . . . of the young person" both "aggravating factors" and "mitigating circumstances" to determine if the People had established extraordinary circumstances. (Assembly Record, pp. 39-40). Thus, the Court finds that the People's motion must be denied unless they prove the existence of facts in this case that are so exceptional and unusual to overcome the "presumption where only one out of 1,000 cases those extremely rare and exceptional cases" would remain in the Youth Part and not be removed to the Family Court. (Assembly Record, pp. 37-38).

In this case, the Court finds that the People have failed to satisfy the "high standard" embodied in the "extraordinary circumstances" test set forth in CPL § 722.23. The legislators offered a number of suggested aggravating factors that could be considered by a judge when determining whether "extraordinary circumstances" exist in a case, including if a defendant committed a series of serious crimes over the course of many days; if the defendant's conduct was "especially cruel and heinous" in committing the act; or if the defendant was a "ringleader who threatened and coerced reluctant youths to participate in crimes". (Assembly Record, p. 40).

The People's papers do cite to the AO engaging in criminal conduct on two dates in a two-week period. However, their motion papers fail to set forth any detailed information about the AO's involvement and conduct in connection with this particular alleged robbery and assault. The Court notes that, even after personally viewing surveillance footage of the robbery and assault, the People's motion papers describe the AO as having "actively participated" in the incident without further detail. (Murphy Aff. in Support, ¶ 3). The Court finds no basis from the felony complaint or the People's moving papers to conclude that the AO acted in an "especially [*6]cruel and heinous" manner or to conclude that he was a "ringleader" in this alleged incident. To the contrary, it could be surmised from the People's motion papers that the AO was threatened or otherwise coerced into participating in the robbery and assault.

In arguing that this case should not be removed due to the AO's "criminal history and character", the People focus on the details of the other case pending against the AO. That case is pending in the Youth Part and will remain in the Youth Part until its disposition. However, the Court finds that it would be inconsistent with the apparent statutory presumption favoring removal of cases and inconsistent with "the spirit"[FN2] of the Raise the Age Legislation to deny removal of this case based solely on the AO's involvement in another violent criminal incident, particularly when there has been no conviction or admission by the AO in connection with that other incident at this time.

The Court is mindful of the second argument raised in the People's motion, i.e., that "removal of this case would undermine confidence in the criminal justice system as it would be perceived as one more instance of a violent gang member escaping just punishment due to his age". (Murphy Aff. in Support, ¶ 4[b]). However, such argument fails to address the fact that the AO's other pending matter remains in the adult criminal court. Moreover, such argument is speculative and nonspecific, while the legislators specifically instructed that the "extraordinary circumstances" standard is to be determined on a case-by-case basis, taking into consideration the specific circumstances of the offender and the particular case. (Assembly Record, p. 85 ["Every case must be judged on its own merits"]).

Overall, the Court finds that the People have failed to meet the "high bar" of establishing that the facts of this case are so "extremely rare" and "exceptional" that this case should be "one out of 1,000 cases" that should remain in the Youth Part while the others are removed to the Family Court. (Assembly Record, pp. 38 and 85). The Court finds that while both of the offenses pending against this individual are serious and the conduct with which he has been charged is highly troublesome and may certainly warrant considerable punishment and rehabilitative services, the facts simply do not rise to the level of "highly unusual and heinous facts" warranting the denial of removal of this case to the Family Court. (Assembly Record, p. 39).

To be clear, the Court is troubled by and concerned by the fact that this individual was allegedly involved in two violent criminal incidents over a short period of time. However, the Court notes that fortunately no one sustained any injury in connection with the first alleged criminal incident, and the injuries described in the felony complaint and the People's papers for the second criminal incident were limited to contusions and a swollen bone, no medical records were submitted further establishing the existence of such injuries, and, perhaps most importantly, there is no basis to conclude that the AO was a primary actor in causing such alleged injuries.

The Court finds that the People have failed to prove the existence of "extraordinary circumstances" and their motion to prevent removal is denied in its entirety. All other requests for relief not addressed herein are deemed denied.

Accordingly, because the Court finds that the People have failed to prove the existence of "extraordinary circumstances" that should prevent removal of this case, the matter under FYC-[*7]xxxxx-19/001, is hereby removed to the Family Court pursuant to CPL§ 722.23(1). The youth is to appear before the Honorable Ellen Greenberg in the Family Court on October 24, 2019 at 9:00 AM, in accordance herewith.

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

Dated: October 22, 2019

Hempstead, New York

HON. CONRAD D. SINGER, A.J.S.C.

Nassau County Court, Youth Part Footnotes

Footnote 1: CPL § 722.23[2] requires that in cases involving violent felonies, such as the charges involved in this case, that the court undertake a review of the accusatory instrument, no later than six calendar days from the AO's arraignment, to determine if one or any of three statutory factors have been proven "by a preponderance of the evidence", such that the matter is disqualified from being removed to the family court. In this case, the AO waived his right to this sixth-day review of the accusatory instrument, and the parties both consented that the determination as to whether the AO's case would be eligible for removal would be based on the People's filing of a motion based on the existence of "extraordinary circumstances" pursuant to CPL § 722.23[1][b].

Footnote 2: People v. Thomas, supra, 33 NY3d at *6 [Addressing statutory construction and holding that "We also must consider 'the spirit and purpose of the act and the objects to be accomplished'"].