People v J.S.

[*1] People v J.S. 2020 NY Slip Op 50084(U) Decided on January 17, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2020
County Court, Nassau County

The People of the State of New York, Plaintiff,

against

J.S., Adolescent Offender.



FYC-00000-00



N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County,

Max Sullivan, Esq.

Hon. Madeline Singas, Nassau County District Attorney,

Christopher Mango, Esq.
Conrad D. Singer, J.

The following papers were read on this Motion:

The People's Order to Show Cause to

Prevent Removal and Supporting Papers 1

The Adolescent Offender's Opposition to People's Order to Show Cause 2

The defendant in this matter, J.S. (D.O.B. 00/00/02) is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. The People have moved, by Order to Show Cause filed December 18, 2020, 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 has 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 one count of Robbery in the Second Degree (Penal Law § 160.10[1]), a class C Felony; one count of Burglary in the Third Degree (Penal Law § 140.20), a class D Felony; one count of Criminal Mischief in the Third Degree (Penal Law § 145.05[2]), a class E Felony; five counts of Grand Larceny in the Fourth Degree (Penal Law §§ 155.30[1]; 155.30[4]; 155.30[8]), a class E Felony; and one count of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45[2]), a class E Felony. In addition to the foregoing charges, there is currently in this Court a pending violation charge against the AO. On June 7, 2019, this Court adjudicated him a Youthful Offender for Grand Larceny in the Fourth Degree and he was placed on probation for five years.

The charges that are currently pending against the AO arise from his alleged criminal conduct occurring on October 2, 2019, at about 12:20 PM in East G.C.., X.X.., New York; on October 23, 2019, at about 4:00 PM in East G.C.., X.X., New York; on October 23, 2019, at about 6:00 PM in U., X.X., [*2]New York; on October 12, 2019, at approximately 3:30 PM in L., X.X., New York; on October 12, 2019, at approximately 3:20 PM in L., X.X., New York; on November 5, 2019, at approximately 7:51 PM in U., X.X., New York; and on December 2, 2019, at approximately 9:20 AM in U., X.X., New York. He was arraigned on the Felony Complaint on December 5, 2019, by bedside arraignment at the X.X. M.C. in E.M., New York.

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)]).

The People's motion consists of an affirmation from Assistant District Attorney Christopher Mango, Esq., with supporting exhibits attached thereto. (Affirmation in Support of Motion Opposing Removal Pursuant to CPL § 722.23 ["Mango Aff. in Support"]). The People contend that the following "extraordinary circumstances" exist which disqualify this case from being removed to the Family Court: 1) the AO's extensive prior contacts with the criminal justice system, including his past adjudication as a youthful offender, and his being charged with a total of twenty-three separate crimes throughout the entirety of 2019; 2) the indicia of premeditation and planning in the commission of this offense, including by allegedly entering parking garages and gyms solely for the purpose of stealing property; 3) the seriousness of the charge of Robbery in the Second Degree, and the remaining non-violent but felony-level charges pending against the AO in this Court; 4) the AO's alleged leadership role taken before, during or after the commission of the alleged offenses; 5) the impact of removal to Family Court upon the confidence of the public in the criminal justice system; and 6) the impact of removal on the safety and welfare of the community. (Mango Aff. in Support, ¶ 8).

The People further contend that removal of this AO's case to the Family Court would be inconsistent with the purpose of New York's Raise the Age ("RTA") law, because in this case the AO has previously been given several opportunities to avail himself of services, including probation, and instead of experiencing success, the AO's high-risk behaviors have only continued to escalate. (Mango Aff. in Support, ¶ 9). The People assert that "any remedy or relief that Family Court could provide" this AO "has already been exhausted by him, and neither he, nor the community/public, would benefit from his case being removed to the Family Court". (Mango Aff. in Support, ¶ 10).

The AO's opposition to the People's motion consists of an affirmation from the AO's counsel and a supporting exhibit attached there. (Affirmation in Opposition to Motion to Prevent Removal to Family Court of Max Sullivan, Esq., dated January 3, 2020 ["Sullivan Aff. in Opp."]). Defense counsel argues that the People have failed to prove the existence of extraordinary circumstances and that "their position completely disregards the entire premise underlying the Raise the Age ["RTA"] law". (Sullivan Aff. in Opp., p. 2).

Defense counsel further argues that the People have failed to prove the existence of any "highly unusual and heinous facts" and that the AO's criminal history does not serve as a basis for a finding of extraordinary circumstances. (Sullivan Aff. in Opp., p. 3). Defense counsel further contends that the AO allegedly acting in a "premeditated fashion" in connection with the burglary and grand larceny charges does not constitute "extraordinary circumstances", because such a phrase can be used to describe almost any arrest or criminal case. (Sullivan Aff. in Opp., p. 4). Defense counsel also argues that the seriousness of the charges pending against the AO does not constitute an extraordinary circumstance, and that there is "absolutely nothing that is highly unusual or distinctively heinous about the allegations against" the AO. (Sullivan Aff. in Opp., p. 5).

Defense counsel also cites to several mitigating factors as discussed in a prior Nassau County Probation Department update, including that the AO has dealt with homelessness, substance abuse disorders, lack of structure in his life and possible mental health conditions. (Sullivan Aff. in Opp., p. 9, Ex. A to Sullivan Aff. in Opp.). Defense counsel further argues that the Probation Update "makes clear" that the AO continued to remain in contact with probation and was continuing to follow his curfew in spite of facing serious and difficult issues. (Sullivan Aff. in Opp., p. 9).

FACTUAL ALLEGATIONS

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It is alleged in the Felony Complaint that on or about October 2, 2019, at about 12:20 PM, in East G.C. X.X., New York, the AO, acting in concert with two others, attacked a victim. It is further alleged that the AO punched and kicked the victim, causing substantial pain and swelling to his face and arms. The AO allegedly removed the victim's cell phone during the altercation. It is further alleged that the AO and the others with whom he was acting in concert then fled the scene by car.

It is further alleged in the Felony Complaint that on October 12, 2019 at approximately 3:30 PM at an LA Fitness gym facility located in L., X.X., New York, a victim noticed that his locker had been broken into and his wallet removed therefrom. It is further alleged that the AO is seen on video exiting that locker room, acting in concert with another defendant who has been previously charged for the described incident. It is further alleged that the AO is then observed using the victim's credit card at Foot Action located in East G.C., X.X., New York at approximately 2:58 PM to purchase $356.30 worth of merchandise.

The Felony Complaint further alleges that on October 12, 2019, at approximately 3:20 PM at the same LA Fitness gym facility in L., X.X., described above, a victim noticed that his locker had been broken into and his wallet removed therefrom; the AO is allegedly seen on video exiting the facility's locker room, acting in concert with the same co-defendant described above.

The Felony Complaint further alleges that on October 23, 2019, at approximately 4:00 PM, in East G.C. X.X., New York, the AO entered a locked parking garage without permission or authority. While allegedly present in the parking garage he allegedly intentionally caused damage to a vehicle in excess of $250.00 and allegedly removed property from a vehicle in excess of $1,000.00. It is further alleged that on October 23, 2019, at approximately 6:00 PM, the AO possessed and used the victim's stolen Sephora credit card at a location in U., X.X., New York for a total of $21.00.

It is further alleged that on November 5, 2019, in U., X.X., New York, the AO entered an Omni Gym without a membership and broke into a victim's locker. The AO allegedly stole the victim's wallet containing credit cards, cash, car keys and clothing. The AO allegedly took the victim's motor vehicle without permission, and then proceeded to a 7-11 store in U. and used the victim's credit card to withdraw a total of $400.00. The AO then allegedly fled the scene, leaving behind the victim's credit cards and receipts of the withdrawals that he had made.

Finally, it is alleged in the Felony Complaint that on December 2, 2019, at approximately 9:20 AM in U., X.X., the AO was found to be in possession of a stolen credit card.

In addition to the above-described charges currently pending against the AO in the Youth Part, the AO has also been indicted for two counts of Assault in the Second Degree, Resisting Arrest, and Criminal Mischief in the Fourth Degree, arising from an incident alleged to have occurred on June 24, 2019 when the AO broke a car window while attempting to break into a car parked in a garage, and August 13, 2019, when, at the Department of Probation in Garden City, Nassau County, probation officers attempted to place the AO under arrest for criminal mischief and the AO allegedly resisted that arrest, resulting in a physical struggle with two probation officers, allegedly injuring them both. (Mango Aff. in Support, ¶ 4).

On December 5, 2019, the AO was arraigned on a number of felony charges that do not qualify for the Youth Part because he committed such acts when he was seventeen years old and before the law [*3]changed on October 1, 2019. These charges consist of: Burglary in the Third Degree and Criminal Mischief in the Third Degree, for acts allegedly committed on April 23, 2019; Grand Larceny in the Fourth Degree, for acts allegedly committed on July 6, 2019; Grand Larceny in the Fourth Degree, for acts allegedly committed on August 21, 2019; and Grand Larceny in the Second Degree, Identity Theft in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, Grand Larceny in the Fourth Degree, Petit Larceny, and Criminal Mischief, for acts allegedly committed on September 21, 2019. (See Mango Aff. in Support, ¶ 5).

The People's motion also contends that the AO also has a pending case in the District Court for Operating a Motor Vehicle While Impaired by Drugs, Unlicensed Operation of a Motor Vehicle, Leaving the Scene of an Incident without Reporting Property Damage, Resisting Arrest, and Obstructing Governmental Administration in the Second Degree. (Mango Aff. in Support, ¶ 6). The AO also has a pending case for Criminal Possession of a Controlled Substance in the Seventh Degree for alleged possession of marijuana and MDMA. (Mango Aff. in Support, ¶ 6).

The People contend that on June 7, 2019, the AO was adjudicated a YO for Petit Larceny and placed on probation for two years, and that he therefore faces a violation of probation charge before Hon. Anthony Paradiso. (Mango Aff. in Support, ¶ 8). He also faces a violation of probation charge before this Court, as on June 7, 2019 he was adjudicated a YO for Grand Larceny in the Fourth Degree and placed on probation for five years.

CONCLUSIONS OF LAW

The People's motion to prevent removal of the AO's case is filed pursuant to CPL § 722.23(1), which mandates this Court to deny the People's motion unless the Court determines upon their motion that "extraordinary circumstances" exist to prevent removal of the matter to Family Court. (CPL § 722.23[1][d] ["The court shall deny the motion to prevent removal "][emphasis supplied]; 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. Giving effect to the "plain meaning" of the statutory text, as this Court must do [FN1] , the Court finds that an appropriate interpretation of the statutory phrase "extraordinary circumstances" would be circumstances that "go beyond what is usual, regular, or customary" and that "are highly unusual" and "not commonly associated with a particular thing or event".

(See Merriam-Webster Online Dictionary, "extraordinary" [https://www.merriam-webster.com/dictionary/extraordinary]; see also Black's Law Dictionary, 11th ed. 2019, "extraordinary circumstances"; see also People v. Andujar, 30 NY3d 160, 163 [2017] and People v. Ocasio, 28 NY3d 178, 181 [2016], looking to the dictionary definition of a statutory term as a "useful guidepost" for interpreting that statutory term). Thus, this Court finds that CPL § 722.23(1)(d) requires that the People's motion be denied unless they prove the existence of a "highly unusual" set of facts that "go beyond what is usual, regular, or customary" and that which disqualify the case from being removed to the Family Court. (See CPL § 722.23[1][d]).

The RTA's legislative history supports [FN2] an interpretation of the statutory term "extraordinary circumstances" as being a highly unusual set of facts which go beyond what is usual, regular or customary, and further establishes that the People face a substantially high burden in moving to prevent [*4]removal under CPL § 722.23[1][d]. According to the minutes from a legislative debate conducted on the RTA bill in April 2017, 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. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], p. 37). 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.

Therefore, the statutory language mandating the Court to deny the People's motion absent "extraordinary circumstances" 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 the "extraordinary circumstances" requirement is intended to be a "high standard" for the District Attorney's office to satisfy. (Assembly Record, p. 38-39). Indeed, legislators advised that denials of transfer to the family court "should be extremely rare" and "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" and instead instructed that judges should determine whether "extraordinary circumstances" exist on a case-by-case basis [FN3] , with the judge considering "all the circumstances of the case, as well as all of the circumstances of the young person". (Assembly Record, p. 39). It was further explained that Judges should consider the presence of any "aggravating factors" as well as "mitigating circumstances" to determine if the People had established extraordinary circumstances. (Assembly Record, pp. 39-40). The legislators suggested that possible aggravating factors to be considered by a judge would include 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). It was warned, however, that even if such aggravating factors are present in a case, the existence of "mitigating circumstances" could result in a denial of the People's motion to prevent removal. (Assembly Record, p. 40). Potential "mitigating circumstances" consist of a "wide range of individual factors, such as economic difficulties, substandard housing, poverty, learning difficulties educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavioral role models, abuse of alcohol or controlled substances by the [AO], by family or by peers". (Assembly Record, p. 40).

Having considered the arguments and exhibits set forth in both parties' motion papers and based on this Court's own recent history adjudicating the AO as a Youthful Offender, and having observed the AO, his demeanor and his attitude during numerous prior court appearances, the Court finds that there are aggravating factors present in this case. For instance, the Court is certainly troubled by the extensive charges pending against the AO in this Court and in other courts and that this AO, apparently immediately upon being placed on probation, carried out an alleged pattern of committing at least one criminal act each month on a near-monthly basis since April of 2019. This Court is further troubled by the fact that, in addition to having allegedly committed several new non-violent felonious acts, similar in nature to the Grand Larceny in the Fourth Degree to which he recently pled guilty, the AO is now also alleged to have participated in a violent robbery of a random stranger. Fortunately, there is no indication that the victim in that alleged robbery sustained any serious injuries.

The Court notes, however, the absence of other suggested aggravating factors: for example, there is [*5]no proof whatsoever that this AO has acted in any sort of a "ringleader" capacity; no proof that he threatened or coerced reluctant youths to participate in criminal acts. (Assembly Record, p. 40). Likewise, the Court finds no proof that the AO acted in an "especially cruel and heinous manner". (Assembly Record, p. 40).

Moreover, the legislators who crafted the legislation behind RTA specifically contemplated that the Court's determination on "extraordinary circumstances" would not be limited to determining whether aggravating factors are present. (Assembly Record, p. 40) ["[E]ven if these aggravating factors are proven, mitigating circumstances could result in denial of an extraordinary circumstances finding, and, therefore, denial of the motion to stop the transfer to the Family Court"].

In this case, taking into consideration not only all of the circumstances of the case, but also "all of the circumstances of the young person" [Assembly Record, p. 39], the Court finds that there are several significant mitigating circumstances present which weigh against a finding of "extraordinary circumstances". The Court finds, based on its familiarity with the AO from his prior appearances in the Youth Part, and consistent with the representations made by defense counsel in their opposition papers, that the AO has faced and continues to face a host of personal challenges which have significantly impacted his insight and judgment. Specifically, the Court finds that the mitigating circumstances in this case include that the AO has experienced recurring periods of homelessness and housing instability; that he lacks strong familial support; and that he continues to experience substance abuse issues. [Assembly Record, p. 40; Ex 1 to Sullivan Aff. in Opp.] The Court has observed first hand that the AO is immature, lacks insight and exhibits poor judgment and finds, consistent with reports from the probation department [Exhibit 1 to Sullivan Aff. in Opp.] that such traits are likely worsened by such personal difficulties.

The Court does not find that the People have set forth sufficient proof that the AO "would not benefit in any way from the heightened services in the Family Court". (Assembly Record, p. 39). To the contrary, the Court notes that the AO's alleged criminal acts in 2019 occurred during and subsequent to the disposition of the AO's prior cases in the adult criminal justice system. Considering the totality of the circumstances, the Court finds that this particular individual is likely in greater need than others of the heightened services available in the Family Court.

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-70143-19, 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 January 21, 2020, at 9:00 AM, in accordance herewith.

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

DATED: Hempstead, New York

January 17, 2020

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

Nassau County Court, Youth Part Footnotes

Footnote 1:(People v. Thomas, 33 NY3d 1, *5-*6 [2019]; see also People v. Roberts, 31 NY3d 406, 418 [2018]

Footnote 2:[See 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")].

Footnote 3:(Assembly Record, p. 85 ["Every case must be judged on its own merits"]).