People v B.T.

[*1] People v B.T. 2021 NY Slip Op 51285(U) Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2021
County Court, Nassau County

The People of the State of New York, Plaintiff,

against

B.T., D.W., N.O., Adolescent Offenders.



Youth Part Nos. FYC-00000-00, FYC-00000-00, FYC-00000-00



Keith White, Esq., Attorney for AO B.T.

Donald Rollock, Esq., Attorney for AO N.O.

Melvyn K. Roth, Esq., Attorney for AO D.W.

Acting District Attorney of Nassau County, Hon. Joyce A. Smith (Salima Labeb, Esq., Assistant District Attorney)
Conrad D. Singer, J.

The following papers were read on this motion:

People's Affirmation and Memorandum of Law Opposing Removal 1

Adolescent Offender B.T.'s Memorandum of Law and Affidavit In Opposition to People's Motion Opposing Removal 2

Adolescent Offender D.W.'s Affirmation

In Opposition to People's Motion Opposing Removal 3

Adolescent Offender N.O. Affirmation In Opposition to People's Motion Opposing Removal 4

Adolescent Offender ["AO"] D.W. [D.O.B. 00/00/0000] ["AO W."] is charged with one count of Robbery in the First Degree [Penal Law §160.15(4)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law §265.09(1)(b)]; and one count of Conspiracy in the Fourth Degree [Penal Law §105.10(1)]. His co-defendant, AO N.O. [D.O.B. 0/00/0000] ["AO O."], is charged with one count of Robbery in the First Degree [Penal Law §160.15(4)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law §265.09(1)(b)]; one count of Criminal Possession of a Weapon in the Second Degree [Penal Law §265.03(1)(b)]; one count of Conspiracy in the Fourth Degree [Penal Law §105.10(1)]; and one count of Reckless Endangerment in the Second Degree [Penal Law §120.20]. Their co-defendant, AO B.T. [D.O.B. 0/0/0000] ["AO T."], is charged with one count of Robbery in the First Degree [Penal Law §160.15(4)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law §265.09(1)(b)]; one count of Criminal Possession of a Weapon in the Second Degree [Penal Law §265.03(1)(b)]; and one count of Conspiracy in the Fourth Degree [Penal Law §105.10(1)].

The People have filed a motion pursuant to CPL § 722.23[1][b], opposing removal of the three co-defendants' respective cases to the Family Court based on the existence of [*2]"extraordinary circumstances". The AOs have each filed opposition papers to the People's motion and the People have not filed any reply papers in further support thereof. The People's Motion Opposing Removal is determined as follows:

The charges filed against each AO arise from an incident alleged to have occurred on November 5, 2021, at about 8:09 PM, in East G.C., Nassau County, New York. It is alleged that on that date and at that time, AO O. and AO T., while acting in concert and having no permission to do so, displayed a loaded handgun containing five (5) rounds and pointed said handgun at the victims. It is further alleged that AO O. and AO T. then both entered the victims' vehicle and fled the scene. AO O. then allegedly drove the vehicle and, while traveling at a high rate of speed, exited the parking lot in the wrong direction on a one-way road, fled the police, and after failing to stop, ultimately crashed the vehicle through a guard rail and into the brush alongside the M.Parkway, all of which created a substantial risk of serious physical injury to other drivers on the road. It is further alleged that while present at the Third Precinct, AO T. provided Detective K. with consent to search his cellphone, which contained messages detailing the plan to carry out the robbery that took place. It is alleged that AO W. was part of the planning and carrying out of the robbery and had been present at the robbery as well.

AO N. and AO T. were arrested in connection with these charges on November 5, 2021. AO W. was arrested on November 6, 2021. All three AOs were arraigned by Accessible Magistrate on November 6, 2021 and their respective matters were all adjourned to the Youth Part of the County Court to be heard on November 8, 2021. The matters were each scheduled for a statutory Sixth Day Appearance; however, the People subsequently waived such statutory review of the respective accusatory instruments and the parties all agreed and consented to the Court basing its determination of whether to remove each case to the Family Court on the People's filing of a Motion Opposing Removal pursuant to CPL § 722.23[1][b].

The People's Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Salima Labib, Esq., with accompanying Memorandum of Law and supporting exhibits appended thereto. The People argue that extraordinary circumstances exist which warrant retaining the matters of AO T. and AO O. in the Youth Part, in that one of them displayed a firearm and they acted with a "community of purpose" to rob the victims at gunpoint. (People's Memorandum of Law dated November 28, 2021 ["People's Memo of Law"], p. 6). They further argue that both of these AOs subsequently got into the victims' car and drove off, and that when the car ultimately crashed, they both fled the vehicle, displaying a consciousness of guilt. (People's Memo of Law, p. 6). They argue that the bag that was seen being tossed from the fleeing vehicle was recovered, and it contained a loaded and operable firearm. (People's Memo of Law, p. 6).

They further argue that extraordinary circumstances also exist as to AO W. which warrant retaining his case in the Youth Part, as he was the "ringleader" of the three AOs, in that he organized and orchestrated the attack. (People's Memo of Law, p. 6). They further argue that AO W. then lied to the police about his involvement in the robbery and gave them a statement which made them believe that he was a victim. (People's Memo of Law, p. 8). They further argue that AO W. has a matter involving a firearm pending in Brooklyn Family Court and the fact that he is repeatedly being arrested for matters involving firearms should be considered an "extraordinary circumstance" to retain the matter in the Youth Part.

The People argue that they are not in possession of any mitigating circumstances that could be used to support removal of the AOs' respective cases to the Family Court. (People's [*3]Memo of Law, p. 10).

AO T.'S OPPOSITION TO THE PEOPLE'S MOTION

Counsel for AO T. opposes the People's Motion and argues that the People have failed to provide a basis for finding that extraordinary circumstances exist as to AO T. in that "the conduct alleged does not rise to the level of 'highly unusual and heinous facts' warranting the denial of removal to the Family Court". (Memorandum of Law in Opposition to People's Motion to Prevent the Removal of this Action to Family Court by Keith White, PLLC, counsel for B.T., dated December 5, 2021 ["AO T. MOL in Opposition"], p. 4). Counsel for T. further argues that none of the documents and/or statements proffered by the People in support of their Motion for Extraordinary Circumstances allege that this AO displayed a firearm or weapon. (AO T. MOL in Opposition, p. 5). Counsel further argues that the People's "community of purpose" argument cannot be used to prevent AO T.'s case from being removed to the Family Court.

AO T.'s counsel further argues that the People have failed to overcome the "very high bar" to prove extraordinary circumstances, in that the People have not alleged that the AO committed a sexual act or caused any of the complainants to sustain any physical injuries; additionally, the People have failed to prove that the AO displayed an actual "firearm" or "deadly weapon" in his alleged commission of the criminal act. (AO T. MOL in Opposition, p. 9).

Finally, AO T.'s attorney asserts that mitigating circumstances exist which support removal of this AO's case to the Family Court and cites to the supporting affidavit of AO T.'s mother, in which she affirms that in 2019 she was diagnosed with Breast Cancer and that she was required to undergo intense chemotherapy treatments, which placed the AO and the rest of her family under extreme physical, social, emotional, and financial stress. (Affirmation of A.D., dated December 2, 2021 [D. Aff.], ¶¶ 5 and 6). She further affirms that while her family was suffering from such stress arising from her Breast Cancer diagnosis, the AO's grades began to fall, and he began to rebel and miss school. (D. Aff., ¶ 6).

AO O.'S OPPOSITION TO THE PEOPLE'S MOTION

Counsel for AO O. also argues that the People have failed to prove extraordinary circumstances exist as to his client. (Affirmation in Opposition to People's § 722.23[1][d] Motion for Extraordinary Circumstances by Donald Rollock, Esq., dated November 30, 2021 ["Rollock Aff. in Opposition"], ¶ 4). AO O.'s counsel further argues that, viewing the facts in the light most favorable to the People, they have merely proved that a robbery occurred, and that co-defendant AO W. was the "mastermind of this poorly planned and stupid robbery". (Rollock Aff. in Opposition, ¶ 6). AO O.'s counsel cites to People's Ex. 4, which is AO T.'s Statement of Admission, in which AO T. stated that "weren't gonna shoot anyone" with the gun and, according to AO O.'s counsel, admitted to throwing the gun out of the window of the vehicle when the police were in pursuit. (Rollock Aff. in Opposition, ¶ 9).

Counsel for AO O. further argues that, according to the vehicle's occupants, only a cell phone was taken from any of the complainants and none of the complainants were injured. (Rollock Aff. in Opposition, ¶ 10). Counsel for AO O. emphasizes that the allegations amount only to the alleged "display" of a firearm, as there are no allegations that the firearm was pointed at someone. (Rollock Aff. in Opposition, ¶ 10). Counsel for AO O. also argues that the People have failed to put forth any evidence showing that his client is not redeemable or would not benefit from the heightened services offered in the Family Court. (Rollock Aff. in Opposition, ¶ 23).

[*4]AO W.'S OPPOSITION TO THE PEOPLE'S MOTION

Counsel for AO W. also opposes the People's Motion for Extraordinary Circumstances and argues that FCA § 381.2(1) prohibits the Court from using AO W.'s pending Family Court case against the AO or his interests. (Affirmation in Opposition to People's §722.23(1)(d) Motion for Extraordinary Circumstances by Melvyn K. Roth, Esq., dated December 2, 2021 ["Roth Aff. in Opp. To People's Motion], ¶5). Counsel for AO W. argues that his client did not possess or display a firearm, nor did he cause anyone to sustain any injuries. (Roth Aff. in Opp. To People's Motion, ¶7).

AO W.'s counsel further argues that the People face a "very high bar" in opposing the removal of an AO's case to the Family Court and cite to Assembly Members' stated intention that only "one in 1,000 [cases] would be kept by the Criminal Court and the others would" be removed to the Family Court. (Roth Aff. in Opp. To People's Motion, ¶9). Counsel for AO W. cited to a Certificate from Lutheran Social Services of New York, attached as Exhibit A to his Affirmation, which counsel asserts demonstrates that his client is worthy of having his case removed from the Youth Part to the Family Court. (Roth Aff. in Opp. To People's Motion, ¶11).

FINDINGS OF FACT

According to the respective Felony Complaints, on or about November 5, 2021, at about 8:09 PM at 000 O.C. Rd, E. G.C., Nassau County, New York, AO O. and AO T., while acting in concert and having no permission to do so, displayed a loaded handgun containing five (5) rounds, and pointed said handgun at the victims. It is further alleged that AO O. and AO T. then entered the victims' vehicle and fled the scene. AO O. then allegedly drove the vehicle and, while traveling at a high rate of speed, exited the parking lot in the wrong direction on a one-way road, fled the police, and after failing to stop, ultimately crashed the vehicle through a guard rail and into the brush alongside the M. Parkway, all of which created a substantial risk of serious physical injury to other drivers on the road.

It is further alleged that while present at the Third Precinct, AO T. provided Detective K. with consent to search his cellphone, which contained messages detailing the plan to carry out the robbery that took place. It is alleged that AO W. was part of the planning and carrying out of the robbery and had been present at the robbery as well.

It is further alleged in the People's Motion papers that on November 5, 2021, at 000 O.C. Road in G.C., Nassau County, New York, AO W. was driving a 2020 Blue BMW 330i, New Jersey registration XXXXXX. (Affirmation of Assistant District Attorney Salima Labeb, Esq., dated November 28, 2021 ["Labeb Aff. in Support of Motion"], ¶ 3 [citing to Exhibit 1 thereto]. It is further alleged that K. F. ["F."], E.M. ["M"], J.K. ["K."], and T.E. ["E."] were also in the vehicle. (Labeb Aff. in Support of Motion, ¶ 4 [citing to Exhibit 2 thereto]). It is further alleged that the vehicle had been rented by F.'s friend and that F. had permission to drive it. (Labeb Aff. in Support of Motion, ¶ 5).

The People further allege that a few days before November 5, 2021, AO W. asked F. about the vehicle and F. told AO W. that he would drive out to Long Island where AO W. lived so that he could see it. (Labeb Aff. in Support of Motion, ¶ 6 [citing to Exhibit 2 thereto]). The People further allege in their Extraordinary Circumstances Motion that AO W. communicated with AO T. and AO O. about the BMW and they made an agreement to steal it. (Labeb Aff. in Support of Motion, ¶ 7 [citing to Exhibit 3, copies of text messages between the parties, and Exhibit 4, AO T.'s written Statement of Admission dated November 6, 2021]). The People quoted portions of the parties' alleged text message communications in which they discussed [*5]whether AOs N. and T. would travel from Brooklyn to Long Island in an Uber and what they planned to wear for the forthcoming robbery. (Labeb Aff. in Support of Motion, ¶ 8).

The People further allege in their motion that on November 5, 2021, AO W. met with F., K., M, and E. F. allegedly let AO W. drive the BMW to 630 O. C. Road, which is the R.F. Mall in G. C. and they arrived there at approximately 8:00 PM. (Labeb Aff. in Support of Motion, ¶ 10 [citing to Exhibit 2 thereto]). AO W. allegedly drove around the parking lot twice and then parked the car and the occupants immediately exited the car, except for F. who was slower to exit because he was sitting in the middle of the rear seat. (Labeb Aff. in Support of Motion, ¶¶ 11 and 12). As soon as the occupants exited the vehicle, AO T. and AO O. (who were then allegedly unknown to all occupants except AO W.), ran up to the occupants wearing masks. (Labeb Aff. in Support of Motion, ¶¶ 11 and 12). It is alleged that either AO T. or AO O. was holding what appeared to be a firearm and stated, "empty your pockets give me everything you got" and also "I'm going to boom you". (Labeb Aff. in Support of Motion, ¶ 13 [citing to Ex 2 — interview notes; Ex 4—AO T.'s written statement; and Ex. 5- complainants' supporting depositions]).

It is alleged that nothing was taken off of F. or M's person, and that AO T. and AO O. searched E.'s pockets but did not take anything from his person, and that K.'s phone was taken. (Labeb Aff. in Support of Motion, ¶ 14). It is further alleged that F. had $5,000.00 cash that he dropped on the floor of the vehicle, a backpack with his iPad and iPhone in the trunk, and that a Moncler vest and Gucci sneakers were also in the trunk, and that M. and E. also had their backpacks in the trunk. (Labeb Aff. in Support of Motion, ¶ 15). It is further alleged that the keys to the BMW were also in the trunk. F. allegedly exited the BMW and AO T. and AO O. got into it and drove off towards R. Road. (Labeb Aff. in Support of Motion, ¶ 17).

After F. called 911, Nassau County Police Third Precinct Officers M. and A. heard the radio transmission for the stolen BMW and then observed the BMW on R. Road in G. City, driving the wrong way on a one-way road. (Labeb Aff. in Support of Motion, ¶¶ 18 and 19). Officers M. and A. unsuccessfully tried to stop the BMW. (Labeb Aff. in Support of Motion, ¶ 20 [citing to Ex. 6 thereto]). Nassau County Police Bureau of Special Operations officers V. and M. also heard the radio transmission and also observed the BMW and were also unsuccessful in their attempts to stop the car, and the car continued on R. Road. (Labeb Aff. in Support of Motion, ¶21 [citing to Ex. 6 thereto]). Officers V. and M. followed the BMW and allegedly observed a black bag being thrown from the vehicle onto R. Road. (Labeb Aff. in Support of Motion, ¶22 [citing to Ex. 6 thereto]).

The BMW continued onto the M. Parkway going southbound and officers temporarily lost sight of it, until they observed it crashed into a guardrail. (Labeb Aff. in Support of Motion, ¶23 [citing to Exs. 6 and 7 thereto]). AO O. and AO T. fled the vehicle and the officers observed AO O. exiting the driver's side of the vehicle. (Labeb Aff. in Support of Motion, ¶24 [citing to Ex. 6 thereto]). AO O. was captured after a foot pursuit by officers V. and M. (Labeb Aff. in Support of Motion, ¶25 [citing to Ex. 6 thereto]). AO T. was captured after a foot pursuit by an off-duty New York City Police Department officer who was driving southbound on the M. and observed the crash and foot pursuit and stopped to assist. (Labeb Aff. in Support of Motion, ¶22 [citing to Exs. 6, police report, and 8, supporting deposition of K.K.]).

Officers V. and M. allegedly returned to R. Road and retrieved the black bag they had observed being thrown from the BMW; the bag contained a loaded Smith and Wesson .38 revolver. (Labeb Aff. in Support of Motion, ¶27 [citing to Ex. 9 thereto, photograph]). It is [*6]further alleged that after AO T. and AO O. were taken into custody, AO T. was advised of his Miranda rights and he provided a written statement of admission [Exhibit 4], and that he told Detective K. that AO W. told him and AO O. that his friend rented a BMW and they should meet him at the R. F. Mall to steal it; that they facetimed to plan it; and that he and AO O. communicated with AO W. on the day of the incident so that AO W. could tell them where to be. (Labeb Aff. in Support of Motion, ¶29 [citing to Ex. 4 thereto]).

AO T. allegedly also stated that AO O. was the one holding the firearm and that they threw it out of the window when they realized that the police were behind them. (Labeb Aff. in Support of Motion, ¶29 [citing to Ex. 4 thereto]). AO T. provided written consent for Detective K. to search his phone, where he recovered text messages between the three AOs. (Labeb Aff. in Support of Motion, ¶30 [citing to Ex. 10 thereto]).

It is further alleged that AO W. was also placed under arrest. (Labeb Aff. in Support of Motion, ¶ 32). The firearm that was retrieved by the police was tested by members of the Nassau County Police Department Evidence Management Unit and was found to be operable with the ammunition with which it was loaded. (Labeb Aff. in Support of Motion, ¶34 [citing to Ex. 11, operability report]).

The People's Motion for Extraordinary Circumstances includes the supporting deposition of D.W., dated November 5, 2021, in which Mr. W. affirmed that he was with the four complainants in the parking lot of Neiman Marcus at R. F. Mall and that while exiting the subject vehicle the group was approached by "2 black males wearing ski masks, one wearing glasses" and that "[t]he males stated 'We need everything' while one of the males positioned his hand by his waistband as if he had a gun. (Ex. 5 to People's Extraordinary Motion). He further affirms therein that when both males entered the vehicle, he took off running in an attempt to safely get away, and that inside the vehicle he had a black and gray Louis Vuitton Fanny pack valued at $1,800.00. (Ex. 5 to People's Extraordinary Motion). He further affirms that he did not give them permission to steal the vehicle or leave with his property and that he was requesting that both males be arrested. (Ex. 5 to People's Extraordinary Motion).

LEGAL CONCLUSIONS

The People's motion opposing removal is filed pursuant to CPL § 722.23[1], which provides, in pertinent part, that "[t]he court shall order the removal of the action to the family court unless, within thirty calendar days of such arraignment, the district attorney makes a motion to prevent removal of the action pursuant to this subdivision ". The People acknowledge that they face a high burden in opposing removal, as CPL § 722.23[1][d] requires the Court to deny the People's Motion for Extraordinary Circumstances, "unless the court makes a determination 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] [emphasis supplied]).

The term "extraordinary circumstances" is not defined under CPL § 722.23. However, using the statutory text as "the starting point" to "ascertain and give effect to the intention of the Legislature"[FN1] and based on the "plain meaning" of the text, this Court has formulated a definition for the phrase "extraordinary circumstances" which is a set of "exceptional" and "highly [*7]unusual" facts which indicate that the case should not be removed to the Family Court.[FN2]

The Court has reviewed the New York State Assembly Record dated April 8, 2017, in which Assembly Members debated various nuances of the Raise the Age ["RTA"] bill which would ultimately be enacted into law on April 10, 2017. In those proceedings, Assembly Members stated that they intended the "extraordinary circumstances" standard "to be determined and shaped by a judge's ruling after the enactment and effectiveness of [the Raise the Age legislation]"; and they further stated that the standard "should take into consideration all the circumstances, including the mental capacity of the offending child". (Assembly, Record of Proceedings, April 8, 2017 ["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). While the statutory language and the assembly members' debate makes clear that the People face a "very high bar"[FN3] in opposing the removal of a case to the Family Court, it is also clear that legislators intended for the Youth Part judge to look at the specific circumstances of each case and each juvenile and to determine whether there are "extraordinary circumstances" present based on that Judge's experience after having presided over the Youth Part.

In this case, the Court finds that the People have established that "extraordinary circumstances" exist with respect to AO W. The documents provided by the People and the arguments that they have proffered in support of their Extraordinary Circumstances Motion indicate that AO W. devised the plan which led to the armed robbery incident: that he formulated the plan to steal the car, lured his one purported friend F. to the subject location under the guise of wanting to see the car that he rented, recruited his two purported friends to carry out the armed robbery and communicated with them up until the point of the robbery to ensure that the robbery was successfully completed. If such alleged conduct were not "heinous" enough, he then appears to have lied to the police and the complainants—his so-called friends—with his actions and his words including his written supporting deposition in which he portrayed himself a victim of the incident. (Ex. 5 to Labeb Aff. in Support of Motion). Based on the documents provided by the People in support of their motion, it appears that he might have succeeded in perpetrating such lies and escaping prosecution but for his co-defendants informing on him.

Moreover, while AO W.'s counsel provided a certificate dated November 30, 2021, which appears to be signed by a teacher indicating that the AO demonstrated "outstanding behavior and work habits", the Court finds that this certificate, standing alone and without any further explanation and/or context, is insufficient to constitute a mitigating circumstance that would outweigh the despicable conduct that the People have attributed to this AO in connection [*8]with the armed robbery incident. Under the totality of the circumstances and having considered the aggravating circumstances of AO W.'s specific role in the armed robbery, his lying to law enforcement and to his purported friends, including by swearing to a false written statement, and weighing such against the certificate of good behavior proffered by his counsel, the Court finds extraordinary circumstances which warrant keeping AO W.'s case in the Youth Part.

While AO W. had an undisputedly critical and central role in the armed robbery incident, the conduct attributed by the People to AO T. and AO O. is also exceptionally despicable. First of all, based on the text message communications between the AOs that the People included with their motion papers, it appears that AO T. and AO O. were also materially involved in the planning and execution of the armed robbery.

Furthermore, the People contend that they could not have succeeded in a sixth day appearance with respect to either of these AOs, as it could not be determined which of the two of them actually displayed the firearm [FN4] because they were both masked. (People's Memo of Law, p. 4). Indeed, the attorneys for both of these AOs cite to the fact that the People's failure to establish which of the two of them displayed a firearm during the armed robbery incident. (See AO T. MOL in Opposition, p. 5; and see Rollock Aff. in Opposition, ¶ 9). However, the documents and sworn statements included with the People's motion indicate that someone displayed a loaded and operable firearm during the armed robbery, which one of the two of them then threw out of the car window as they fled from law enforcement. The Court finds that these AOs should not benefit from the People's difficulty in establishing which of the two of them personally displayed the weapon due to their both wearing masks and concealing their faces and considers their conduct an aggravating circumstance with respect to each of them.

Furthermore, they both then entered the vehicle and fled from law enforcement, until the BMW, allegedly driven by AO O., crashed on the M. Parkway. They both then continued their attempts to evade law enforcement by attempting to flee on foot. Their actions endangered their lives, the lives of innocent civilian drivers, and that of the police officers who pursued them. While counsel for AO O. and AO T. assert that keeping the case in the Youth Part would amount to keeping any "Robbery in the First Degree" case in the Youth Part, this Court has considered the specific circumstances of this particular armed robbery, each of these AOs' involvement in the planning and execution of the subject robbery, and their conduct in fleeing from the police.

The Court has further considered that AO O.'s counsel has cited to his client's lack of criminal history, and finds that this mitigating circumstance, when weighed against AO O.'s role and conduct as alleged by the People, does not support removing the AO's case from the Youth Part to the Family Court.

With respect to AO T., the Court has also considered the affidavit supplied by the AO's mother, in which she affirms that she was diagnosed with breast cancer in 2019. The Court is of course mindful of the stress and emotional impact that his mother's diagnosis and treatment caused to his family and to the AO. However, the mother also affirmed in her affidavit that she and the AO have maintained a close maternal bond since his birth, and notes that many [*9]individuals are not as fortunate to have such a close familial bond and strong family support system. The Court further finds that, under the circumstances of this case, the mother's diagnosis in 2019, weighed against the conduct that has been attributed to him for this November 5, 2021 armed robbery, does not support removing his case from the Youth Part to the Family Court.

Overall, under the totality of the circumstances, and having balanced the aggravating and mitigating factors in each of these respective cases [see, e.g., People v. B.H., 63 Misc 3d 244, 250 (Sup Ct Nassau County 2019)], and based on this Court's extensive experience presiding over the Youth Part and applying the Raise the Age law for several years now, the Court finds that extraordinary circumstances exist as to AO W., AO O. and AO T., and that each of their cases should remain in the Youth Part through disposition.

Accordingly, the People's Motion Opposing Removal to the Family Court is granted and each of the AO's respective cases shall remain in the Youth Part through disposition.

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

DATED: December 21, 2021

Hempstead, 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 CPL § 722.23[1][d]; see also, 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 "plain meaning" of statutory phrase; see also, Merriam-Webster Online Dictionary, "extraordinary" [https://www.merriam-webster.com/dictionary/extraordinary]; Black's Law Dictionary, "extraordinary circumstances", [10th ed. 2014]).

Footnote 3:[See CPL 722.23(1)(d); see also Assembly Record, p. 83]

Footnote 4:See CPL § 722.23(2)(c)(ii), which provides that in a sixth day appearance, the People must prove by a preponderance of the evidence that, as set forth in the accusatory instrument, inter alia, "the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense".