People v K.A.

[*1] People v K.A. 2019 NY Slip Op 51920(U) Decided on December 2, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2019
Family Court, Erie County

The People of the State of New York, Plaintiff,

against

K.A., Defendant.



FYC-70122-19/001



Meredith M. Mohun, Esq., (Assistant District Attorney)

Dean Puleo, Esq., (for the Adolescent Offender)
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 October 24, 2019, Affirmation of Danielle N. D'Abate, Esq. (Assistant District Attorney), dated October 24, 2019, in support of the motion, Reply Affirmation & Memorandum of Law in Opposition of the Motion to Prevent Removal by Dean Puleo, Esq., dated November 25, 2019, on behalf of K. A. ("Defendant"), and oral argument having been held on November 27, 2019, and due deliberation having been had, the Court finds the following:

This action was commenced by way of accusatory instruments that charged Defendant with Making a Terroristic Threat, a Class D Felony, as defined by Penal Law § 490.20(1), six (6) counts of Computer Trespass with Intent to Commit, a Class E Felony, as defined by Penal Law § 156.10(1), and seven (7) counts of Aggravated Harassment in the 2nd Degree, a Class A Misdemeanor. It is alleged that the multiple offenses all occurred on September 23, 2019 over a span of five hours.

Defendant was born on May 26, 2003. Defendant was brought before Youth Part because she was sixteen years old when the crimes were alleged to have been committed. Thus, by law Defendant is considered an Adolescent Offender (hereinafter, "AO"). See CPL § 1.20(44).

AO was arraigned on September 24, 2019. Following the arraignment, AO consented to a mental health evaluation and risk assessment. AO was released on own recognizance. On September 30, 2019, the Court determined the People could not meet the requirements of CPL § 722.23(2)(c). The People were ordered to proceed in accordance with CPL § 722.23(1).

On October 24, 2019, the People filed its motion pursuant to CPL §722.23(1)(b) to prevent removal to family court. Annexed to the People's motion is an Affirmation by Danielle N. D'Abate, Assistant District Attorney (the "Affirmation"). Attached to the Affirmation are copies of the felony complaints and misdemeanor informations, emails from Austin Klimowicz, Andrew Kowal, Nicholas Roger, Meghan Hudack, Ashley Ruth and AO, Town of Hamburg Police Voluntary Statement by AO, Town of Hamburg Police Department Deposition of Fact by Ddaniel A. Charland, affirmed under penalty of perjury on September 24, 2019, Supporting Deposition of Dennis Horrigan, subscribed and verified under penalty of perjury on October 24, 2019, and Town of Hamburg Police Department Deposition of Fact by Nicholas Budney, affirmed under penalty of perjury on October 22, 2019.

Pursuant to CPL § 722.23(1)(a), the court shall order removal of the action to family court unless the district attorney makes a motion to prevent same within thirty calendar days of arraignment. The People filed its motion timely. Thereafter AO requested additional time to reply. Neither party requested an evidentiary hearing. The parties agreed to proceed on the papers and oral argument.

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 accusatory instruments 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). However, the People also rely upon the Voluntary Statement by AO provided on September 23, 2019, Deposition by Ddaniel A. Charland, affirmed under penalty of perjury on September 24, 2019, Deposition of Dennis Horrigan, subscribed and verified under penalty of perjury on October 24, 2019, and Deposition of Nicholas Budney, affirmed under penalty of perjury on October 22, 2019. The content of these documents falls within the mandate of CPL § 722.23(1)(b).

CPL § 722.23(1)(d) provides that a motion to prevent removal of an action to family court shall be denied unless the district attorney establishes the existence of "extraordinary circumstances". Raise the Age legislation ("RTA") does not define extraordinary circumstances. Extraordinary circumstances must be defined and determined on a case by case basis. One can infer from review of New York State Assembly Memorandum at 39 submitted in accordance with Assembly Rule III, Sec 1 (f), Bill Number A4876 that the legislative intent is for a definition to include facts which are unusual and heinous 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 and proof that the child is not amenable or would not benefit in any way from services. Id. at 39.

Here, we look first to the accusatory instruments which served as the basis for commencement of this action and sets forth in detail the factual allegations of the crimes charged. The factual parts of the instruments seem to support the elements of the alleged offenses. However, this Court does not find the instruments setting forth the behavior of AO to be statements of sworn facts based upon personal knowledge.

Since the factual part of an unsworn accusatory instrument cannot be the basis for [*2]extraordinary circumstances finding, the Court considers the content of the voluntary statement and depositions upon which the People argue that in totality demonstrates extraordinary circumstances.

The People argue that AO acted alone in sending seven threatening messages from AO's email account and the accounts of six other students after AO hacked into them while being aware that her actions would bring fear and intimidation to innocent people. The first email having been sent at 9:23AM. It is further argued that AO's conduct did in fact cause panic and fear throughout the school building. Even after AO was confronted by school administrators, AO continued her plan with the final email being sent at 1:16PM. The People further argue that AO showed no remorse as she participated in the school lock-down and witnessed the emotional trauma and negative affect her behavior was having on many of the students and school personnel.

Defense counsel ("Counsel") argues the Court must consider factors such as (1) whether AO committed a series of crimes over a series of days, (2) whether AO acted in an especially cruel and/or heinous manner, and (3) whether AO was a leader of the criminal activity who had threatened or coerced other reluctant youth into committing the crimes before the court. (See, NY Assembly Records of Proceedings at 40 [April 8, 2017]).

According to Counsel, AO constructed a plan with the idea that she would merely get school administration to remove her and allow her to attend a different school. Counsel claims that AO's motivation was in reaction to being bullied by classmates. Counsel argues that the threat did not appear to be credible. Counsel points to the facts that AO has no criminal history and did not possess or use any weapons. AO merely acted out to express her discontent. Counsel further argues that AO did not committ a series of crimes over a series of days, did not act in an especially cruel or heinous manner, and while AO was the only participant of the alleged criminal activity, she did not threaten or coerced other reluctant youth into committing the crimes before the court.

Counsel further argues the People are obligated to show that AO is not amenable to services. AO is a child who has shown a willingness to comply with probation services after voluntarily submitting to a mental health evaluation and risk assessment.

Counsel cites People v. T.R., FYC-70017-18/001 (2018), an unpublished case decided by this Court on December 21, 2018, wherein an adolescent offender was charged with making a terroristic threat. It was determined there that the People failed to meet its burden of showing extraordinary circumstances to prevent removal as the adolescent had no criminal history, no weapons were used, there was no evidence that the adolescent's behavior was especially cruel or heinous, and the People's request that the court focus on the citizens' reaction to the adolescent's behavior and failure to accept responsibility was rejected. Unlike T.R., here the People argue the Court should focus on the AO's conduct. The People correctly points out that AO's behavior had a harmful impact on others which should not be minimized. However, they ask the Court to focus on the actual conduct and steps taken by the AO over a nearly five-hour period which they believe in its totality should constitute extraordinary circumstances.

Reviewing the facts, it is clear from the record that AO and her mother conversed about AO's desire to leave the school prior to AO's engagement in the alleged crimes. And conversing with an adult about her desire should not be dismissed without consideration. It further appears that AO planned to take certain action and over nearly a five-hour span of time engaged in steps to execute her plan. AO hacked in to email accounts and made threats to do harm from those [*3]accounts. Even when confronted by school administration, AO continued her course of conduct. AO continued her plan by sending an additional email. AO continued to engage in behavior that ultimately caused people to suffer. AO participated in the mandatory lockdown and witnessed the impact on others. The Court agrees with the People that AO's behavior was not indicative of a child who was being "very stupid" as AO stated in her voluntary statement. It is more akin to the behavior of a person who is calculating and lacks concern for the negative and harmful impact the behavior would have on innocent people.

We can infer from the legislative assembly minutes that the legislative intent is for the courts to focus on the behavior of children and not merely the public reaction to that behavior. However, as articulated in People vs. J.P., 63 Misc 3d 635 (2019), it is the legislative intent that the extraordinary circumstances requirement be "a high standard for the DA to meet. And under this bill, denials of transfer to the family court should be extremely rare Transfer to the family court should be denied only when highly unusual and heinous facts are proven and there is strong proof that the young person in not amenable or would not benefit in any way from the heightened services in the family court." See, NY Assembly Records-of Proceeding at 39 [April 8, 2017]

The Court agrees with Counsel that the legislative discussion of 'extraordinary circumstances' directs the court to factors which should be considered in its determination. Here, AO is not charged with multiple felony offenses committed within weeks of one another. There are no allegations in the People's motion which would support a conclusion that the crimes charged were particularly cruel or heinous. While it is alleged that AO was the sole actor in the criminal activity, there is no claim that she threatened or coerced other reluctant youth into committing the crimes before the court. As for the claim that there were nearly one thousand five hundred students at the school, the Court concludes that extraordinary circumstances should not be based 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 impact on the individuals involved cannot be determined solely upon review of sworn documents before the Court.

Undoubtedly, the Court places a premium on the emotional well-being of members of society who should not have to endure the fear of being shot, shot at or harmed in any way. The impact that criminal behavior has on the emotional well-being of others should not be taken lightly. Nor does this Court believe that society should simply get accustomed to the behavior of which the AO is accused. However, while it may be that AO's conduct impacted over one thousand innocent lives by placing them in fear, and causing them emotional harm, it would be mere speculation as the Court does not have before it enough sworn non-hearsay facts to reach that conclusion. Given the "high standard" requirement for finding 'extraordinary circumstances' it appears the People have failed to adduce enough evidence as contemplated by the legislation.

Finally, the legislative intent is to remove children from criminal prosecution whenever possible and to rehabilitate them when they are amenable to services. Since the arraignment on September 24, 2019, AO has been amenable to services. AO submitted to a mental health and voluntary risk assessment. AO accepted a case planning service agreement with the probation department. AO has been compliant with the service plan. AO has regularly attended school as directed. AO has timely appeared in court for all proceedings. AO has led a law-abiding life.

On this record, therefore, 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 [*4]removal is denied.

Dated: December 2, 2019

ENTER,

____________________________________

HON. KEVIN M. CARTER