People v Y.R.

[*1] People v Y.R. 2020 NY Slip Op 51601(U) Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2020
County Court, Nassau County

The People of the State of New York, Plaintiff,

against

Y.R., Adolescent Offender.



FYC-0000-00



N. Scott Banks, Nassau County Legal Aid Society, by Tatiana Miranda, Esq.,

Counsel for Adolescent Offender, Y.R.

Hon. Madeline Singas, Nassau County District Attorney,

Lauren McDonough, Esq.
Conrad D. Singer, J.

The following papers were read on this motion:

People's Affirmation and Memorandum of Law Opposing Removal 1

Adolescent Offender's Opposition to People's Motion 2

People's Reply Papers in Further Support of People's Motion 3

The defendant in this matter, Y.R. (D.O.B. 00/00/0000), is charged as an Adolescent Offender ("AO") in the Youth Part of the County Court in Nassau County. She is charged with one count of Attempted Grand Larceny in the Third Degree [Penal Law § 110/155.35(1)]; and one count of Attempted Scheme to Defraud in the Second Degree [Penal Law § 110/190.60(1)].

The People have filed a motion opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances". (CPL § 722.23[1][b]). The AO has filed an opposition to the People's motion and the People have filed reply papers in further support thereof. The People's Motion Opposing Removal is determined as follows:

The charges against the AO arise from her alleged involvement in a scheme to defraud on or about October 27, 2020, at approximately 5:45 PM in M.P., Nassau County, New York. It is alleged that on that date and at that time, she participated in a scheme in which she and her adult co-defendant attempted to defraud one victim of $8,500.00. The AO also allegedly stated to a member [*2]of law enforcement that she had picked up $9,500.00 from a second victim who resides in O., New York.

The AO was arrested on October 27, 2020. She was arraigned in the Youth Part on October 28, 2020. At her arraignment, the People reported that they were not consenting to remove the AO's case to the Family Court, they acknowledged that they were not entitled to a 6-day appearance, and stated that they would be filing a Motion Opposing Removal based on the existence of "extraordinary circumstances". (CPL § 722.23[1][b]).

The People's Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Lauren McDonough, Esq. with accompanying Memorandum of Law, and supporting exhibits appended thereto. The People contend that the charges against the AO stem from her involvement in a several-month complex scheme run by a Transnational Criminal Organization ("TCO"), which the People refer to as the "Elder Bail Scam". (Affirmation of Lauren A. McDonough, Esq., dated November 17, 2020 ["McDonough Aff. in Support"], ¶¶ 3 through 25; Memorandum of Law in Support of Motion, dated November 17, 2020 ["People's Memo of Law in Support"], p. 1).

According to the People, extraordinary circumstances exist which warrant preventing removal of the AO's case to the Family Court and retaining the case in the Youth Part. The alleged extraordinary circumstances include the cruelty involved in targeting elderly victims and defrauding them of significant sums of money during the global coronavirus pandemic [People's Memo of Law in Support, pp. 5 and 6]; the AO's knowledge and level of participation in the "Elder Bail Scam" [People's Memo of Law in Support, pp. 4 and 5]; and that the removal of the AO's case to the Family Court would "shake the public's confidence in the criminal justice system" [People's Memo of Law in Support, pp. 6 and 7]. The People contend that no mitigating circumstances exist but, to the extent that any mitigating circumstances do exist, they are "far outweighed" by the aggravating factors in this case. (People's Memo of Law in Support, p. 7).

Defense counsel's opposition to the People's Motion Opposing Removal consists of the sworn affirmation of defense counsel Tatiana Miranda, Esq. and exhibits appended thereto. Defense counsel argues that there is "nothing extraordinary" about the allegations underlying the charges against the AO and that, if the legislature intended for crimes involving elderly victims to be treated differently than other crimes, the statute would have specifically addressed the same. (Opposition to People's Motion by Tatiana Miranda, Esq., dated December 1, 2020 ["Miranda Opp."], pp. 3 and 4).

Counsel for the AO denies that the AO is "integral" to the success of the TCO's scheme; she asserts that the AO's un-apprehended co-defendants threatened the AO's younger sister's life if she did not participate in the scheme, that the un-apprehended co-defendants directed the AO where to go after they selected the location and after they had spoken to the complainants on the phone. (Miranda Opp., p. 4).

Defense counsel opposes the People's assertion that the AO has been participating in the TCO's scheme over the course of four months. She states that the People failed to provide any detailed information concerning the AO's extended involvement and she notes that no criminal charges have been filed in connection with the AO's alleged participation in the same scheme in O., New York. (Miranda Opp., p. 5). Counsel characterizes the People's argument about "shaking the public's confidence" by removing the AO's case to the Family Court as "speculative", "nonspecific" and not an extraordinary circumstance. (Miranda Opp., p. 5).

Additionally, defense counsel contends that mitigating circumstances exist which warrant [*3]denying the People's Motion Opposing Removal. According to counsel, the AO has a lengthy history of behavioral problems, mental health conditions and hospitalizations, and was hospitalized as recently as November 16, 2020 for physically harming herself. (Miranda Opp., p. 7).

Counsel asserts that the People are "patently incorrect" in arguing that the AO has a "solid family and home life" and in denying the existence of mitigating circumstances. (Miranda Opp., pp. 6 and 7). She further argues that the premise underlying the RTA legislation supports removing the AO's case to the Family Court, where she can receive the specialized individual care and treatment that she needs. (Miranda Opp., p. 7).

The People argue in their Reply papers that "[t]argeting elderly victims for significant financial fraud cannot be described as anything but cruel" and that, based on the AO's own statements, she has actively participated in targeting and defrauding elderly victims through the downstate area for several months. (Reply to Defendant's Affirmation in Opposition to People's Motion, dated December 8, 2020 ["People's Reply"], pp. 1 and 2).

The People assert that the AO's role in obtaining the money from the elderly victims is "integral to the scheme" and that without the AO, "the scheme would fail". (People's Reply, p. 2). They further contend that the details known by the AO regarding the overall operation are not details that would be given to someone who was "intimidated" or "threatened" into participating. (People's Reply, p. 2). They argue that the mitigating circumstances described by the AO's counsel are outweighed by the aggravating factors set forth by the People. (People's Reply, p. 3).

FINDINGS OF FACT

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It is alleged in the felony complaint that on October 27, 2020 at 0000 L. Drive, M.P., Nassau County, New York, the victim in this matter was contacted by an unknown person who advised the victim that his grandson was in jail. It is further alleged in the felony complaint that the victim was instructed to meet with a courier and instructed to pay $8,500.00 for his grandson's bail.

At approximately 5:45 PM, the AO's co-defendant, W. M. ("M."), was operating a 2002 tan Honda minivan with a New Jersey temporary tag. The AO allegedly exited the passenger side of the minivan and approached 0000 L. Drive, which is the victim's residence. Once at the front door the AO allegedly handed the victim a receipt for $8,500.00. The victim and the AO proceeded to make the exchange when law enforcement intervened. The AO was placed into custody.

It is further alleged in the felony complaint that the AO's co-defendant M. attempted to leave the scene while operating the aforementioned minivan, but was stopped by responding law enforcement members, who were able to then place him into custody. It is further alleged that during the course of the investigation in this case, the AO stated to a Detective T. that she had picked up $9,200.00 from a second victim, who resides in O., New York.

According to the People's motion papers, after the AO and her co-defendant M. were arrested, they were interviewed by Nassau County Police Detectives after being read and waiving their Miranda rights. (McDonough Aff. in Support, ¶ 12). The AO and co-defendant M. gave detailed accounts of their roles in the October 27, 2020 "Elder Bail Scam" and they also provided information regarding their involvement in other such Elder Bail Scams. (McDonough Aff. in Support, ¶ 12).

The AO explained to law enforcement that beginning in about July 2020, she has been traveling throughout the area and picking up money related to scams. (McDonough Aff. in Support, ¶ 13). She explained that the scams are run out of the Dominican Republic and are effectuated by people speaking to elderly victims and convincing them to provide money related to fake arrests and fake accidents. (McDonough Aff. in Support, ¶ 13).

The AO reported that individuals named "J." and "B." would provide her with pick-up instructions for her role, including the names and addresses of the elderly victims, as well as the monetary amount that was to be provided by the victim. (McDonough Aff. in Support, ¶ 14). The AO reported that if the AO was unable to pick up the proceeds of the scams, then "B." and "J." would threaten her sister's life. (McDonough Aff. in Support, ¶ 15).

As to the October 27, 2020 incident, the AO stated that "B." sent her two addresses of elderly victims via WhatsApp messages, and that the AO then had co-defendant M. drive her to the two locations. (McDonough Aff. in Support, ¶ 16). She first directed co-defendant M. to an address in O., New York, where the AO took an envelope containing $9,200.00 in cash from the elderly victim. (McDonough Aff. in Support, ¶ 16). The AO and co-defendant M. then drove to the address in M.P. where they intended to pick up $8,500.00 from the would-be victim. (McDonough Aff. in Support, ¶ 17).Based on the AO's opposition papers, the AO suffers from mental health issues, for which she has been previously hospitalized, and she was identified as a missing child for months. (Miranda Opp., p. 6). Defense counsel cites to a report from the Nassau County Probation Department, and asserts that the AO has a "lengthy history of behavioral problems, mental health conditions, and hospitalizations", and that she has been diagnosed with Borderline Personality Disorder in Adolescence, Oppositional Defiant Disorder, and Major Depressive Disorder. (Miranda Opp., p. 7).

The AO has "been hospitalized at New York P., F.W., and St. D. and was taken by ambulance and hospitalized as recently as November of 2020 for physically harming herself. (Miranda Opp., p. 7). The AO's school attendance records indicate that she has not attended school since the beginning of the school year. (Miranda Opp., p. 7).

CONCLUSIONS OF LAW

Pursuant to CPL § 722.23[1][d], this Court is required to deny the People's Motion Opposing Removal unless the Court determines, upon the People's motion, that "extraordinary circumstances exist that should prevent the transfer of the action to family court". (CPL § 722.23[1][d]). The term "extraordinary circumstances" is not defined under CPL § 722.23. Using the statutory text as "the starting point" to "ascertain and give effect to the intention of the Legislature"[FN1] , and using dictionary definitions as a "useful guidepost", the Court finds that the "plain meaning" [FN2] of the phrase "extraordinary circumstances" is a set of facts that are "exceptional" and "highly unusual" and which indicate that the case should not be removed to the Family Court. (see CPL § 722.23[1][d]).

Consistent with the phrase's "plain meaning", the legislative history of the Raise the Age ["RTA"] legislation reflects that "extraordinary circumstances" is intended to cover "unusual circumstances that would warrant keeping the case in the Youth Part." (Assembly Record, April 8, 2017 ["Assembly Record"] pp. 40-41). Assembly member Joseph Lentol, who sponsored the RTA bill in the New York State Assembly, stated that for felony cases outside of the "most serious cases, such as Murder and Assault in the First Degree", the legislators intended that the [*4]extraordinary circumstances requirement would "be a high standard for the DA to meet" and that "denials of transfers to the family court should be extremely rare". (Assembly Record, p. 39).

Further examination of the legislative history reveals that legislators intended the "extraordinary circumstances" standard "to be determined and shaped by a judge's ruling after the enactment and effectiveness of [the RTA legislation]"; and that the standard "should take into consideration all the circumstances, including the mental capacity of the offending child". (Assembly Record, p. 83). Recognizing that "every case is going to be different", legislators directed that every case would be "looked at by the judge individually, to determine what kind of factors— both aggravating and mitigating—there are in the case, to determine whether or not" the particular case "passes the exceptional circumstances test". (Assembly Record, pp. 83-84).

Consistent therewith, legislators directed that "[e]very case is to be judged on its own merits ", taking into consideration certain "guideposts" such as whether it was a "cruel and heinous manner where the crime was committed, [and/or] where the defendant was a ringleader". (Assembly Record, p. 85). The legislators predicted that the cases would be "rare" where the Court would find "extraordinary circumstances" which warrant keeping a case in the Youth Part. (Assembly Record, p. 85).

In this case, mindful of the legislative directives discussed above, and after considering the arguments raised by both parties in their motion papers and reviewing and evaluating their respective supporting exhibits, the Court does not find the existence of "extraordinary circumstances" which would warrant keeping this AO's case in the Youth Part.

The Court finds that the AO's months-long involvement in what the People have deemed the "Elder Bail Scheme"[FN3] is an aggravating factor. Likewise, the Court finds that the targeting of vulnerable and elderly individuals as victims of a defrauding scheme is reprehensible. However, the Court is not persuaded by the People's assertions that the AO is "integral" to the overall success of the scheme. Nor is the Court persuaded that the AO's level of knowledge and understanding as to the workings of the scheme necessarily establish that the higher up individuals in the TCO have a significant level of trust in her. The Court finds after reviewing both parties' motion submissions that the AO's role in the scheme is relatively minor compared to that of others: for instance, she does not select the victim(s) or communicate the fraudulent story to the selected victim or determine how much money to defraud a particular victim.

Furthermore, the Court finds that there are several significant mitigating factors which weigh against finding extraordinary circumstances. The Court finds that the AO's confirmed mental health conditions and her prior institutionalizations, including her recent hospitalization for self-harm, indicate that she would benefit from the level of services and rehabilitative setting available in the Family Court. Of further relevance to the Court's determination is the family's history of contact with NYC Administration for Children Services. While not necessarily indicative of any fault on her parents' part, it indicates that the AO would benefit from the focused services and rehabilitative objectives advanced in the Family Court.

Under the totality of the circumstances, the Court finds, having balanced the aggravating and mitigating factors in this case [see, e.g., People v. B.H., 63 Misc 3d 244, 250 (Sup. Ct. Nassau Cty. 2019)], that there are no extraordinary circumstances preventing the AO's case from being removed [*5]to the Family Court and that therefore the AO's case should be removed to the Family Court forthwith.

For the foregoing reasons, the People's Motion Opposing Removal of the AO's case to the Family Court based on extraordinary circumstances is denied.

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

DATED: December 22, 2020

Westbury, New York

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

Nassau County Court, Youth Part Footnotes

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

Footnote 2:see People v. Andujar, 30 NY3d 160, 163 [2017] and People v. Ocasio, 28 NY3d 178, 181 [2016], for the proposition that dictionary definitions may provide "useful guideposts" for ascertaining the "plain meaning" of a statutory phrase; Merriam-Webster Online Dictionary, "extraordinary" [https://www.merriam-webster.com/dictionary/extraordinary]; Black's Law Dictionary, "extraordinary circumstances", [10th ed. 2014]).

Footnote 3:By her own apparent admission (Exhibit A to Miranda Aff. in Opp.; Exhibit 2 to McDonough Aff. in Support)