People v O.C.
Annotate this CaseDecided on August 29, 2023
Youth Part, Erie County
The People of the State of New York
against
O.C., AO.
Docket No. FYC-72153-23
Michael J. McHale, Esq. (Assistant District Attorney)
Daniel Schaus, Esq. (for the Principal) 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 to Prevent Removal to Family Court and Supporting Affidavit of Michael J. McHale, Esq. (Assistant District Attorney), dated August 16, 2023; the Reply Affirmation in Opposition by Daniel P. Schaus, Esq., on behalf of AO O.C.; oral argument and a hearing on the motion having been waived and due deliberation having been had, the Court finds the following:
Procedural History
AO O.C. is charged under FYC-72153-23 with one count of Grand Larceny in the Third Degree, a class D Felony, under Penal Law § 155.35(01); one count of Criminal mischief in the Third Degree, a class E Felony, under Penal Law § 145.05(02); Criminal Trespass in the Third Degree — Enclosed Property, a class B Misdemeanor, under Penal Law § 140.10(0A); and Possession of Burglar Tools, a class A Misdemeanor, under Penal Law § 140.35.
On July 19, 2023, this Court arraigned AO O.C., who entered a plea of not guilty. This Court also held a six-day reading on July 19, 2023. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c). This Court ordered this action to proceed in [*2]accordance with CPL § 722.23(1). This Court released AO O.C. on his own recognizance with voluntary services and appointed the Youth Part Resource Coordinator.
Findings of Fact
It is alleged that on July 1, 2023, AO O.C. and two co-defendants entered an enclosed police impound area and took three dirt bikes out of the impound. The defendants had no right to enter the property or take the dirt bikes. The dirt bikes consisted of a blue Yamaha worth $1,500, a blue Yamaha worth $1,500, and an orange KTM worth $2,000.
To gain entry into the police impound yard, AO O.C. and his co-defendants used red bolt cutters to break wooden slats of a picket fence, which enclosed the impound yard, causing approximately $500.00 in damage to the fence.
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 reviewed 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 [*3]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 [AOs] 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.
The facts as alleged against AO O.C. are not highly unusual and heinous. The People do not allege that this AO led, threatened, or coerced other reluctant youth into committing the crimes before this Court. As far as this Court is aware, AO O.C. has no criminal history. He did not commit a series of crimes, and he does not have any other cases pending in Youth Part. Defense Counsel presented important mitigating factors. AO O.C. was abandoned by his mother, a drug addict, at age three. He was then adopted by his grandparents, who have raised him. AO O.C.'s biological father has never been involved in his life. Additionally, AO O.C. has educational challenges and difficulties learning. He has an individualized education plan, which was created to ensure he receives necessary accommodations and help in school.
The People have not provided strong proof that this AO is not amenable or would not benefit in any way from the heightened services in the family court. AO O.C. deserves the opportunity to participate in Family Court services.
The intent of the Raise the Age legislation is to rehabilitate youth instead of incarcerating and punishing youth. The People have not met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, this Court finds that extraordinary circumstances do not exist to warrant this matter remaining 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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