People v J.K.
Annotate this CaseDecided on May 12, 2023
Family Court, Erie County
The People of the State of New York
against
J.K., AO.
Docket No. FYC-70551-23/001
Joelle M. Marino, Esq. (Assistant District Attorney)
Nora Robshaw, Esq. (for the AO)
Brenda M. Freedman, 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 and Supporting Affidavit of Joelle M. Marino, Esq. (Assistant District Attorney), dated March 17, 2023; the Attorney Affirmation in Opposition by Nora Robshaw, Esq., dated March 22, 2023, on behalf of AO J.K.; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:
Procedural History
On February 27, 2023, AO J.K. was arraigned in Youth Part by Hon Brenda M. Freedman on one count of Grand Larceny in the Fourth Degree, PL §155.30(4), a class E Felony, one count of Unauthorized Use of a Vehicle, PL §165.05(1), a class A Misdemeanor, one count of Attempted Petit Larceny, PL §§110.00/155.25, a class B Misdemeanor, one count of [*2]Attempted Identity Theft in the Third Degree, PL §§110.00/190.78(1), a class B Misdemeanor. AO J.K. was already remanded on a different matter and nominal ($1.00) bail was set for these charges. At the arraignment the People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c) to remain in Youth Part. The People indicated that they would be making a motion under CPL, Art. 722, § 722.23(1) requesting this matter not be removed to Family Court. Joelle M. Marino, Esq. (Assistant District Attorney), filed a Notice of Motion and Supporting Affidavit dated March 17, 2023, on behalf of the People. Nora Robshaw, Esq., filed an Attorney Affirmation in Opposition by dated March 22, 2023; on behalf of AO J.K. On March 22, 2023 AO J.K. returned before Youth Part, for multiple pending matters and the People's motion to prevent removal of his other matters was granted; however, the Court did not make a determination on these charges at that time. AO J.K. remained detained on other matters and nominal bail was continued for this matter.
Findings of Fact
On January 16, 2023, AO J.K. is alleged to have stolen a debit card and a set of keys from a gym locker. It is further alleged the keys were used to take a vehicle that AO J.K. did not own to drive to a store and attempt to use the stolen debit card.
Following the date of the alleged incident, January 16, 2023, and AO J.K.'s arraignment on February 27, 2023, AO J.K. is alleged to have committed multiple other felonies, which are currently pending in Youth Part. AO J.K. also has previously had charges brought before Youth Part from five separate incidents that had been removed to Family Court.
Conclusions of Law
Pursuant to CPL § 722.23(1)(a), the Court shall order removal of the action to Family Court unless, within 30 days of arraignment, the District Attorney makes a written motion to prevent removal of the action.
Pursuant to CPL § 722.23(1)(d), the Court shall deny the district attorney's motion to prevent removal unless the Court determines that extraordinary circumstances exist that should prevent the transfer of the action to Family Court. CPL § 722.23 does not define the term "extraordinary circumstances".
In People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021), the Court referenced the common dictionary and the legislative history of the Raise the Age legislation and interpreted "extraordinary circumstances" to mean that "the People's Motion Opposing Removal must be denied unless they establish the existence of an 'exceptional' set of facts which 'go beyond' that which is 'usual, regular or customary' and which warrant retaining the case in the Youth Part instead of removing it to the Family Court."
New York State Assembly members debating the Raise the Age legislation indicated that the extraordinary circumstances requirement was intended to be a "high standard" for the District Attorney to meet, and denials of transfers to Family Court "should be extremely rare". NY Assembly Debate on Assembly Bill A03009C, Part WWW, at 39, April 8, 2017; see also, People v S.J., 72 Misc 3d 196 (Fam Ct 2021). "[T]he People would satisfy the 'extraordinary circumstances' standard where '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'. People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021) citing Assembly Record, p. 39.
The legislators indicated that in assessing "extraordinary circumstances", the Judge should consider the youth's circumstances, including both aggravating factors and mitigating circumstances. People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021); Assembly Record, pp. 39 to 40. Aggravating factors make it more likely that the matter should remain in Youth Part, and mitigating circumstances make it more likely that the matter should be removed to Family Court. People v S.J., 72 Misc 3d 196 (Fam Ct 2021).
Aggravating factors include whether the AO: (1) committed a series of crimes over multiple days, (2) acted in an especially cruel and heinous manner, and (3) led, threatened, or coerced other reluctant youth into committing the crimes before the court. People v S.J., 72 Misc 3d 196 (Fam Ct 2021); Assembly Record, p. 40.
Mitigating circumstances are meant to include a wide range of individual factors, including economic difficulties, substandard housing, poverty, difficulties learning, educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavior models, abuse of alcohol or controlled substances by the AO, or by family or peers. People v S.J., 72 Misc 3d 196 (Fam Ct 2021); Assembly Record at 40.
"The People may not, in any way, use the [AO's] juvenile delinquency history, including any past admissions or adjudications, in any application for removal under the statute." People v J.J., 74 Misc 3d 1223(A) [NY Co Ct 2022]; citing Family Court Act § 381.2(1); see also, People v. M.M., 64 Misc 3d at 269, supra, citing Green v. Montgomery, 95 NY2d 693, 697 (2001).
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." This Court considered only those exhibits and documents whose content fall within the mandate of CPL § 722.23(1)(b) in making this decision.
This Court does find the matter at hand to be extraordinary. Historically, AO J.K. has had eleven (11) cases brought in the Youth Part. Five (5) of those cases were previously removed to Family Court starting in March, 2022 through September, 2022. Since that time, Respondent was arrested several more times and has charges from three separate incidents currently pending in Youth Part. As this Court has previously held, including on a prior matter involving this defendant, a youth with multiple prior matters having been removed to Family Court in conjunction with multiple pending charges stemming from separate incidents constitutes extraordinary circumstances. See this defendant's prior matter: People v. J.K., 185 NYS3d 658 [Erie County Youth Part, April 7, 2023] and People v. P.P., 78 Misc 3d 1222(A) [Erie County Youth Part, April 11, 2023].
Defense counsel properly identifies mitigating factors exist for AO J.K. Specifically, AO J.K. has a lack of family support and also cites positive reports from AO J.K.'s time in placement with OCFS coupled with AO J.K.'s lack of step-down services and/or resources after his placement ended. However, substantial aggravating factors exist here that support a determination to keep this matter in Youth Part. AO J.K.'s actions illustrate that he will not be amenable to the heightened services of Family Court. The mitigating factors outlined by Defense counsel were considered but fail to outweigh the aggravating factors found.
The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. The People have met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, taking into account the mitigating factors and the finding of substantially aggravating factors, this Court finds that extraordinary circumstances exist warranting this case remain in the Youth Part.
This constitutes the opinion, decision, and order of this Court.
SO ORDERED.
ENTER,
HON. BRENDA M. FREEDMAN
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