People v J.A.D.

[*1] People v J.A.D. 2021 NY Slip Op 50189(U) Decided on March 1, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2021
County Court, Nassau County

The People of the State of New York,

against

J.A.D., Adolescent Offender.



XXX-00000-00



Hon. Madeline Singas, Nassau County District Attorney,

Gregory Murphy, Esq.

Robert Schalk, 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 Affirmation in Opposition to People's Motion Opposing Removal 2

The defendant in this matter, J.D. (D.O.B. 00/00/0000) 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 February 5, 2021, 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 did not file any Reply papers.

The People's Motion Opposing Removal is determined as follows:

The AO is charged, by way of a felony complaint, with one count of Criminal Possession of a Weapon in the Second Degree [Penal Law § 265.03(3)]. The charges filed against the AO arise from an incident alleged to have occurred on January 19, 2021 at approximately 2:48 PM at a location in H. Nassau County, New York. The AO was arraigned on the Felony Complaint on January 20, 2021, in the Youth Part of the County Court, Nassau County.

The Court conducted the statutory "sixth-day appearance" in this matter on January 26, [*2]2021, at which time the People acknowledged that they could not meet their burden for the purpose of the "sixth-day appearance". They stated that they would be opposing removal of the AO's case by filing a motion pursuant to CPL § 722.23(1) based on the existence of "extraordinary circumstances". They thereafter filed their Motion Opposing Removal which is the subject of this Decision and Order.

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, dated February 4, 2021 ["Murphy Aff. in Support"]). Attached to ADA Murphy's affirmation is a copy of the felony complaint in this matter, as well as a copy of a probation report from Probation Officer Y.F., dated January 26, 2021. (Murphy Aff. in Support, Exs. 1 and 2 thereto). ADA Murphy asserts that his supporting affirmation is based upon information and belief, the sources of said information and basis for said belief being his "conversations with witnesses, attorneys, and members of law enforcement, as well as [his] review of the files of the Office of the District Attorney pertaining to this matter and the defendant's prior criminal history". (Murphy Aff. in Support, ¶ 2).

The People summarize the allegations against the AO as follows:

"it is alleged that on January 19, 2021, at approximately 2:48 PM, [the AO], adolescent offender/co-defendant J.R., and not charged other C.N., all of whom are known by law enforcement to be ICG Crip gang members, were walking through the streets of H. During this time both [the AO] and codefendant R. were each carrying their own loaded pistols. When they saw police surveilling and moving towards them, they approached a nearby dumpster and left the loaded firearms abandoned in the dumpster as they attempted to flee". (Murphy Aff. in Support, ¶ 3 and Ex. 1 thereto).

The People contend that there are "extraordinary circumstances" which warrant retaining this case in the Youth Part. First, the People contend that retention of this case in the Youth Part is warranted due to the seriousness of the charge filed against the AO: one count of Criminal Possession of a Weapon in the Second Degree, a C violent felony offense. (Murphy Aff. in Support, ¶ 6[a]).

Second, the People contend that retention is warranted due to the AO's criminal history and character. (Murphy Aff. in Support, ¶ 6[b]).They contend that the AO is known by law enforcement to be an ICG Crip gang member, and that he was last before this Court on July 11, 2019, under docket number FYC 00000-00, facing one count of Criminal Possession of a Weapon in the Second Degree [Penal Law § 265.03(3)], as well as multiple other possession-related charges. (Murphy Aff. in Support, ¶ 6[b]). The People contend that the AO's prior Youth Part case was removed to the Family Court "with the hope that the defendant would take advantage of the available resources and grow into a rehabilitated and productive member of society". (Murphy Aff. in Support, ¶ 6[b]). They contend that, "[a]t the time of the commission of the instant offense, the defendant was on aftercare with the Office of Children and Family Services ["OCFS"], following his release from OCFS". (Murphy Aff. in Support, ¶ 6[b] and Ex. 2 thereto).

Third, they contend that retention of this case is warranted due to "[t]he 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, ¶ 6[c]). They assert that this AO presents as a serious risk to the safety and welfare of the community and that removal of his case to the Family Court is likely to undermine the public's confidence in the criminal justice system. (Murphy Aff. in [*3]Support, ¶ 6[c]).

The AO's opposition to the People's Motion Opposing Removal consists of an affirmation from his counsel, with a copy of the crime report from the alleged incident attached thereto. (Affirmation in Opposition to People's Motion Opposing Removal by Robert Schalk, Esq., dated February 9, 2021 ["Schalk Aff. in Opp."]). Defense counsel asserts that the portions of his affirmation that are based upon information and belief are premised upon conversations had with the defendant, the prosecution and various caretakers of the defendant, the papers filed in connection with these proceedings, family court records, probation records and independent case investigation. (Schalk Aff. in Opp., ¶ 2).

Defense counsel argues that that the AO's case should be removed because the People's argument opposing removal is premised, first, on the AO's prior contacts with the Family Court and second, on the AO's alleged underlying conduct in this case, neither of which constitutes "extraordinary circumstances" warranting retention of this case in the Youth Part. (Schalk Aff. in Opp., § I). Defense counsel further contends that the People's use of the AO's prior family court records violates FCA § 381.2, which specifically prohibits the use of prior delinquency records in other courts. (Schalk Aff. in Opp., § I[i]). Defense counsel argues that "[t]he Court must disregard the prosecution's entire claim that [the AO's] prior family court delinquency history may serve as an appropriate basis to allege extraordinary circumstances pursuant to CPL § 722.23. (Schalk Aff. in Opp., § I[i]).

Defense counsel further argues that the People have offered no proof that there is no possible benefit to the AO having his case heard in the Family Court, and that the People have failed to offer sufficient proof that he is not amenable to Family Court services. (Schalk Aff. in Opp., § I[ii]). Defense counsel argues that, while not having contact with the criminal justice system again "is certainly a benefit" of family court services, "it is not the sole benefit that [the AO] could receive from successful family court intervention". (Schalk Aff. in Opp., § I[ii]).

Defense counsel contends that a "whole host of mitigating circumstances" surround the AO and his background, in that he has been diagnosed with Attention Deficit Disorder and has been recommended for substance abuse treatment. (Schalk Aff. in Opp., § I[ii]). Defense counsel also disputes the People's contention that the case must be retained in the Youth Part due to the "serious nature of the allegations" against the AO and argues that, if it had been the legislature's intention that a charge of Criminal Possession of a Weapon in the Second Degree would preclude removal of a case to the Family Court, then same would have been explicitly enumerated. (Schalk Aff. in Opp., § I[iii]). Counsel also disputes the assertion that there is anything "extraordinary" about the underlying allegations in this case. Counsel calls into question the manner in which the allegations against the AO are portrayed and cites to the crime report from the alleged incident as providing a different version of the allegations against the AO. (Schalk Aff. in Opp., § I[iii], and Ex. A thereto).

FACTUAL ALLEGATIONS

/i>

Based on the allegations in the felony complaint and in ADA Murphy's affirmation in support of the People's Motion Opposing Removal, it is alleged that on or about January 19, 2021, at approximately 2:48 PM, the AO, his co-defendant/AO J.R., and not charged other C.N. were walking through the streets of H. Nassau County, New York. During this time both the AO and his codefendant/AO J.R. were allegedly each carrying their own loaded pistols. When they saw police surveilling and moving towards them, they allegedly approached a nearby dumpster and left the loaded firearms abandoned in the dumpster as they attempted to flee. The Felony [*4]Complaint alleges that the AO was observed dropping an "unknown object" into the dumpster which was located at the rear of 00 J. St. in H. Nassau County, New York. Law enforcement responded to that location after the AO was detained and they allegedly discovered a loaded silver 380 Beretta Gardone Pistol with the serial number X000000 inside of the dumpster.

CONCLUSIONS OF LAW

The People's Motion Opposing Removal is filed pursuant to CPL § 722.23[1], which 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)]. CPL § 722.23(1) expresses an apparent presumption in favor of removing a case from the Youth Part to the 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, this Court's "primary consideration is to ascertain and give effect to the intention of the Legislature". (People v. Thomas, 33 NY3d 1, *5 [2019]; 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, 33 NY3d at *5-6; People v. Roberts, 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]). The Court has referenced multiple dictionaries for the "ordinary and commonly understood" meaning of the phrase "extraordinary circumstances"[FN1] , and finds that the People's Motion Opposing Removal must be denied unless the People prove the existence of a set of "exceptional" and "highly unusual" facts which warrant retaining the AO's case in the Youth Part. (See CPL § 722.23[1][d]).

Additionally, the Court has reviewed the legislative history of the RTA legislation as a further aid in statutory interpretation[FN2] , and finds that it supports an interpretation of "extraordinary circumstances" as being a set of facts that are "highly unusual" and "exceptional". 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. (Assembly, Record of Proceedings, April 8, 2017 ["Assembly Record"], p. 37). Many of the legislators who developed and promoted the RTA bill wanted all [*5]cases involving sixteen and seventeen-year-old's to be filed and heard exclusively in the Family Court. The mechanism through which 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, p. 37).

Legislators declined to provide specific instances where the Court should find that "extraordinary circumstances" exist. (Assembly Record, p. 39). Instead, they indicated that Judges "must look at all the circumstances of the case, as well as the circumstances of the young person", and that they should consider both "aggravating factors" and "mitigating circumstances" to determine if the People had established extraordinary circumstances. (Assembly Record, pp. 39-40). The Court must deny the People's motion unless the People prove the existence of facts that are sufficiently exceptional and unusual to overcome the "presumption where only one out of 1,000 cases" remains in the Youth Part and is not removed to the Family Court. (Assembly Record, pp. 37-38).

In this case, after reviewing the People's motion papers opposing removal, and considering defense counsel's arguments in opposition thereto, 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. Although the Criminal Possession of a Weapon charge against the AO is a serious charge, the Family Court is indisputably capable of presiding over cases involving charges that are equally or more serious. Additionally, while the Family Court provides youths with comprehensive rehabilitative services, Family Court Judges can also impose strong and serious sanctions where they deem appropriate.

Furthermore, considering that Legislators intended that the People would face a "very high bar"[FN3] to prevent a case from being removed, the Court finds that the People's motion papers are insufficient to establish that "extraordinary circumstances" exist in this case. Having reviewed the People's discussion of the allegations underlying this specific incident, which they failed to support with any affidavit(s) from individual(s) with personal knowledge of the circumstances of this case[FN4] , and which they failed to support with any evidence outside of the Felony Complaint which itself consists of vague, hearsay-based allegations as to this AO's actions, the Court finds that the People have failed to establish that the AO's conduct in this case was "cruel and heinous"[FN5] or otherwise warrants retaining the case in the Youth Part.

The People also oppose removal of the AO's case due to his prior contact with the Criminal Justice system. However, FCA § 381.2 requires the Court to reject those of the People's arguments which rely upon his Family Court history, including their reference to his being on OCFS aftercare following placement as an adjudicated juvenile delinquent. (Murphy Aff. in Support, Ex. 2 thereto). FCA § 381.2 expressly prohibits the use of an AO's juvenile delinquency history and records, including any past adjudications, past admissions, and statements to the court, against him or his interests in any other court. (FCA § 381.2[1]; see also, Green v. Montgomery, 95 NY2d 693, 697 [2001] ["As a rule, a juvenile delinquency [*6]adjudication cannot be used against the juvenile in any other court for any other purpose"; see also People v. Campbell, 98 AD3d 5, 12 [2d Dept 2012], leave to appeal denied, 20 NY3d 853 [2012]; People v. Francis, 137 AD3d 91, 95 [2d Dept 2016]). As the Second Department has observed, the statutory language in FCA § 381.2[1] is "unambiguous and makes clear 'that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction'". (Campbell, 98 AD3d at 10). Under these circumstances, the Court is constrained to disregard those of the People's arguments which are based on his Family Court history as a respondent in a juvenile delinquency proceeding.

The Court has considered the parties' other arguments, including the People's assertion of the aggravating factor that this AO was previously arrested and faced serious weapon possession charges before that case was removed to the Family Court, and the mitigating factors articulated by defense counsel such as the AO being diagnosed with ADHD and his substance abuse problems.

Under the totality of the circumstances, after having balanced the aggravating and mitigating factors concerning this case and concerning this individual youth [see, e.g., People v. B.H., 63 Misc 3d 244, 250 (Sup Ct Nassau County 2019)], the Court finds that the People have failed to meet their burden of establishing that there are "extraordinary circumstances" in this case. The People's Motion Opposing Removal to the Family Court is denied, and this case shall be removed to the Family Court forthwith pursuant to CPL§ 722.23(1).

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

DATED: Westbury, New York

March 1, 2021

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

Nassau County Court, Youth Part Footnotes

Footnote 1: See, e.g., Merriam-Webster Online Dictionary, "extraordinary" [https://www.merriam-webster.com/dictionary/extraordinary]; see also Black's Law Dictionary defining 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].

Footnote 2: People v. Roberts, 31 NY3d at 423; see also People v. Andujar, 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, pp. 38 and 85

Footnote 4: See, CPLR § 722.23[1][b].

Footnote 5: Assembly Record, pp. 40 and 85