County Court, Nassau County, April 30, 2019

Madeline Singas, District Attorney (Heather Kalachman of counsel), for plaintiff.

N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County (Jenna Suppon of counsel), for defendant.

The defendant in these matters, M.M. (date of birth June 18, 2002), is charged as an adolescent offender (AO) in the Youth Part of the County Court in Nassau County. On March 26, 2019, the People moved by order to show cause seeking an order pursuant to CPL 722.23 (1) determining that these matters will 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, through his counsel, filed opposition to the People's motion. On April 22, 2019, the People filed an affirmation in reply and on April 23, 2019, the AO, through his counsel, filed an affirmation in surreply.{**64 Misc 3d at 261}

The People's motion is determined as follows:

The AO is charged by way of a first felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the third degree (Penal Law § 160.05), a class D felony; by way of a second felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the first degree (Penal Law § 160.15 [3]), a class B felony; by way of a third felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the first degree (Penal Law § 160.15 [3]), a class B felony; and by way of a fourth felony complaint (docket No. FYC-xxxxx-xx/xxx) with one count of robbery in the first degree (Penal Law § 160.15 [4]), a class B felony.

The charges filed against the AO arise from four separate incidents alleged to have taken place on January 6, 2019, January 13, 2019, January 25, 2019, and February 25, 2019, respectively. The AO was arrested on February 28, 2019, and arraigned on March 1, 2019, in the Youth Part of the County Court, Nassau County. At the arraignment, the court placed bail on the AO and issued temporary orders of protection which required him to stay away from each of the victims involved in his cases.

On March 7, 2019, the court conducted an appearance/hearing pursuant to CPL 722.23 (2) (a) to review the accusatory instruments and other relevant facts and determine if the People proved the presence of certain factors enumerated under CPL 722.23 (2) (c), including, as relevant to these cases, whether the AO "displayed" a firearm or "deadly weapon" in furtherance of the charged offenses, such that the matters under docket Nos. FYC-xxxxx-xx/xxx; FYC-xxxxx-xx/xxx; and/or FYC-xxxxx-xx/xxx would be disqualified from automatic removal to Family Court pursuant to CPL 722.23 (2) (c).^[FN*] By corrected decision and order dated March 21, 2019, this court held that the People failed to prove by a preponderance of the evidence that the AO "displayed" a firearm or "deadly weapon" in furtherance of any of the offenses for which he has been charged, and that the four pending matters filed against the AO would all proceed toward automatic removal to Family Court absent a motion by the People to prevent removal pursuant to CPL 722.23 (1) (63 Misc 3d 772 [2019]).{**64 Misc 3d at 262}

On March 26, 2019, the People filed such a motion and in it they argue that extraordinary circumstances exist that should prevent the transfer of these actions to the Family Court, Nassau County, pursuant to CPL 722.23 (1) (d). They argue that the extraordinary circumstances requiring the AO's cases to remain in the Youth Part include his "extensive contacts" with the criminal justice system dating back to 2014, which have resulted in one prior felony conviction and four prior misdemeanor convictions as a juvenile delinquent. (Affirmation of Heather L. Kalachman, Esq., dated Mar. 26, 2019 [Kalachman affirmation], ¶ 5.) They argue that prior intervention by the court, including sentencing the AO to probation and releasing him to the custody of the Office of Children and Family Services, has done nothing to curtail the AO's behaviors. (Kalachman affirmation ¶ 5.)

The People further argue that the "indicia of premeditation and planning" in the AO's commission of each of the offenses, the seriousness of the crimes with which he has been charged, and his role as the sole participant in the offenses are all additional extraordinary circumstances. (Kalachman affirmation ¶ 5.) The final two extraordinary circumstances cited by the People are the impact of a removal to the Family Court on the public's confidence in the criminal justice system, and the impact of removal on the safety and welfare of the community. Attached to the People's motion are the felony complaints and the supporting depositions of the complainants in each of the pending offenses.

In opposition to the People's motion, defense counsel argues that the pending matters against the AO must all be removed to the Family Court because the People have failed to prove the existence of extraordinary circumstances. (Affirmation of Jenna Suppon, Esq., dated Apr. 16, 2019 [Suppon affirmation in opp], at 2.) Defense counsel further argues that the court should reject the People's arguments relating to the AO's prior juvenile delinquency history, because not only did the People improperly obtain his protected Family Court records without court approval in violation of Family Court Act § 166, but also because their reliance on such delinquency records violates Family Court Act § 381.2, which specifically prohibits the use of prior delinquency records in other courts. (Suppon affirmation in opp at 4.) Defense counsel further argues that, even if the court were to consider the AO's prior Family Court juvenile delinquency proceedings, the People have still failed to set{**64 Misc 3d at 263} forth extraordinary circumstances as they have failed to prove the existence of "highly unusual and heinous facts" and failed to prove that the AO is not amenable to or would not benefit in any way from the heightened services in the Family Court. (Suppon affirmation in opp at 6-7.)

The People argue in their reply that they did not improperly obtain the AO's Family Court records, as the records were not sealed pursuant to Family Court Act § 375.2 and are thus "merely 'confidential' from the general public." (Affirmation in reply of Heather Kalachman, Esq., dated Apr. 22, 2019 [Kalachman reply affirmation], ¶ 4.) They argue that they properly accessed the AO's records from the County Attorney's Office, their prosecutorial counterpart in the Family Court, and that Family Court Act § 166 specifically does not encompass police or prosecution records. (Kalachman reply affirmation ¶ 5.) The People further argue that they are not in violation of Family Court Act § 381.2, as they have not sought to use the AO's prior juvenile delinquency findings as evidence against him in a fact-finding proceeding, as contemplated under the statute, but are instead asking the court to consider the prior findings only at this early stage, where the court is tasked with making a delicate determination as to whether extraordinary circumstances exist such that his case should not be removed to the Family Court. (Kalachman reply affirmation ¶ 8.)

The AO's surreply consists of an affirmation from his counsel, in which defense counsel argues that the People's argument distinguishing "sealed" records from confidential records is irrelevant as the AO has never asserted that his Family Court records were sealed. (Affirmation in surreply of Jenna Suppon, dated Apr. 23, 2019 [Suppon affirmation in surreply], at 2.) Defense counsel further argues that although the court has the power to permit inspection of Family Court records in an appropriate case, access to such records is by no means automatic and the Practice Commentaries to Family Court Act § 166 further establish that the People were required to obtain court approval before accessing the subject records. (Suppon affirmation in surreply at 4.)

Defense counsel disputes the People's contention that the use of the AO's juvenile delinquency records is proper because they are not being used against the AO as evidence in a fact-finding; defense counsel argues that the statutory language in Family Court Act § 381.2 does not limit its applicability to fact-finding proceedings, hearings or trials. (Suppon affirmation in{**64 Misc 3d at 264} surreply at 7.) Counsel further argues that the one exception to Family Court Act § 381.2's prohibition against use of the juvenile delinquency records in another court is set forth at Family Court Act § 381.2 (2), and that is for use by another court when sentencing an adult after conviction, a situation that is "not at all comparable to the present situation." (Suppon affirmation in surreply at 8.)

FYC-xxxxx-xx/xxx

The felony complaint alleges that on January 6, 2019, at approximately 3:30 p.m., the AO reported to a location in Lakeview, Nassau County, based upon a meeting location that he and the complainant had agreed upon on Facebook. It is further alleged that the AO and the complainant had a social media conversation about the sale of the complainant's headphones to the AO for $300 and that in this conversation the AO disguised himself under the screen name of "T.B." Furthermore, it is alleged that at the subject location, the AO approached the complainant and after confirming that she was the person selling the headphones, he showed the complainant money as a good faith transaction. The AO then put the monies back in his pocket and then forcibly removed the headphones from the complainant's hand, pushed her to the floor and fled with the headphones.

The supporting deposition of the complainant further alleges that the complainant arrived at the meeting spot a little early and messaged "T.B." that she was at the meeting place. A minute later a heavyset male, 17 or 18 years old, approximately six feet tall, arrived, and he confirmed that she was the person selling the headphones. He then started questioning her about whether she had a receipt for the headphones and the complainant realized that something was not right. She started backing away and he then took the headphones out of her hand and shoved her to the ground. He ran off in an unknown direction. (Exhibit 2 to Kalachman affirmation.)

FYC-xxxxx-xx/xxx

It is alleged in the felony complaint that on January 13, 2019, at approximately 9:13 p.m., the AO lured the complainant to the place of occurrence in Rockville Centre, Nassau County, with the promise of buying the complainant's iPhone cell phone. While in front of the subject location, the AO took the cell phone from the complainant's hand without making{**64 Misc 3d at 265} any payment and when the complainant attempted to regain his property, the AO stated "[s]tep back or I'll boom you," while reaching into his waistband. The complainant was caused to fear for his life and the AO then ran from the place of occurrence with the complainant's cell phone.

Additional factual allegations were presented by the People at the sixth-day appearance/hearing, in that supporting depositions from the complainant and an additional eyewitness indicated that they both saw the AO reach toward his waistband, and that they believed he had a gun and feared for their safety. The People also stated that the AO's videotaped statement of admission did not include a reference to a gun.

The complainant's supporting deposition attached to the People's motion papers sets forth additional factual allegations, including that the complainant had been communicating on Facebook with a "T.B." about selling her iPhone cell phone and that her iPhone cell phone was stolen by a light-skinned black male, who was about six feet tall, with a [*3]thin build and who told her that he was "T.B.'s" boyfriend. (Exhibit 2 to Kalachman affirmation.)

FYC-xxxxx-xx/xxx

The felony complaint alleges that on January 25, 2019, at about 9:00 p.m., in Lakeview, Nassau County, the AO lured the complainant via social media to the Lakeview Public Library with the promise of buying her gold rope necklace and her silver necklace. The AO allegedly got into the complainant's vehicle without her consent while placing his hand in his pocket as if he had a handgun and demanded that she drive. The complainant, in fear for her safety, stopped her vehicle and jumped out, screaming for help.

The complainant's supporting deposition attached to the People's motion papers further provides that the perpetrator communicated with the complainant under the name of "T.B.," and that before their meeting he changed plans via social media so that they would meet at the Lakeview Public Library and so that "E.," T.B.'s boyfriend, would be meeting the complainant. It is further alleged that the perpetrator purported to negotiate with the complainant over the price of the jewelry for 10 minutes and that he showed the complainant cash and requested change from her. When the complainant went to her car to make change, the perpetrator entered the passenger side and commanded her to drive. He demanded the complainant's wallet and removed $60 and when he demanded{**64 Misc 3d at 266} that she unlock her cell phone, the complainant stopped the car, got out and started screaming. (Exhibit 2 to Kalachman affirmation.)

FYC-xxxxx-xx/xxx

It is alleged in the felony complaint that on or about February 25, 2019, at about 6:50 p.m. in Roosevelt, Nassau County, the AO lured the complainant via social media to the place of occurrence with the promise of buying her iPhone cell phone and that while in the yard of the said location, the AO took the cell phone from the complainant's hand. When the complainant attempted to regain her property, the AO displayed a black handgun and said to her "[y]o I got a glock on me, don't fuck with me, I will shoot you right now." The AO then ran from the place of occurrence with the victim's cell phone. Additional factual allegations presented by the People at the sixth-day appearance included the fact that in the AO's videotaped statement of admission he admitted to acting as if he had a gun and to referencing a "Glock," but he denied actually having a gun.

The supporting deposition attached to the People's moving papers includes the additional factual allegations that the perpetrator communicated with the complainant in that case under the Facebook name "C.M." (Exhibit 2 to Kalachman affirmation.)

The People's motion to prevent removal of the AO's cases is filed pursuant to CPL 722.23 (1), which expresses a clear statutory preference in favor of removal, as it requires the court to deny the People's motion unless the court determines upon their motion that "extraordinary circumstances" exist that should prevent the removal of the matters to Family Court. (CPL 722.23 [1] [d] ["The court shall deny the motion to prevent removal" (emphasis added)]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2018 Electronic Update, CPL 722.10.)

I. Statutory Meaning of "Extraordinary Circumstances" as Used in CPL 722.23 (1) (d)

The term "extraordinary circumstances" is not defined under CPL 722.23. Thus, to determine whether the People have proved the existence of "extraordinary circumstances," the court must "ascertain the legislative intent and construe the pertinent statutes to effectuate that intent." (People v Roberts, 31 NY3d 406, 418 [2018], quoting Matter of M.B., 6 NY3d 437,{**64 Misc 3d at 267}447 [2006].) "As 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" (id., quoting People v Golo, 26 NY3d 358, 361 [2015]). In doing so, the court looks to the dictionary definition of "extraordinary" as a "useful guidepost[ ]" in determining the meaning of "extraordinary circumstances." (People v Andujar, 30 NY3d 160, 163 [2017]; People v Ocasio, 28 NY3d 178, 181 [2016].) Merriam-Webster defines "extraordinary" as "going beyond what is usual, regular, or customary," and "exceptional to a very marked extent" (see Merriam-Webster Online Dictionary, extraordinary [https://www.merriam-webster.com/dictionary/extraordinary]). Black's Law Dictionary defines the term "extraordinary circumstances" as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event" (at 296 [10th ed 2014]).

Thus, under CPL 722.23 (1) (d), the court is required to deny the People's motion, unless the People prove the existence of facts that should prevent removal of the cases and which are "exceptional to a very marked extent," and "beyond what is usual, regular, or customary." The court finds further guidance on the legislative intent from the legislative history of the Raise the Age (RTA) legislation. (Roberts, 31 NY3d at 423; see also 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"].)

Consistent with the interpretation of "extraordinary circumstances" as facts that are highly "exceptional" and "beyond what is usual, regular, or customary," the legislative history reveals that many of the legislators who worked on the RTA bill wanted all cases involving 16 and 17 year olds to be filed and heard in the Family Court and that the mechanism for having felony cases start in the Youth Part (subject to removal to Family Court) was part of a compromise to reach agreement on the legislation. (NY Assembly Debate on Assembly Bill A03009C, part WWW, Apr. 8, 2017, at 37.) The mechanism for removal of an AO's case under CPL 722.23 (1) (d) therefore evinces the legislators' intent that "in the overwhelming bulk of the cases" the matter would be "promptly transferred from the adult court to the family court." (Assembly Debate, Apr. 8, 2017, at 37.)

{**64 Misc 3d at 268}Thus, in determining whether to grant the People's motion, the question is whether the People have proved that the circumstances in this AO's case are so exceptional and beyond what is "usual" to overcome the "presumption where only one out of 1,000 cases, . . . those extremely rare and exceptional cases," would remain in the Youth Part and not be removed to the Family Court. (Assembly Debate, Apr. 8, 2017, at 37-38.)

II. Consideration of the AO's Past Juvenile Delinquency History and Records

A significant portion of the People's argument against removal is rooted in the AO's juvenile delinquency history, including his past admissions, statements, convictions and subsequent placement under the jurisdiction of the Office of Children and Family Services. Indeed, the People's arguments relating to the impact of removal "upon the confidence of the [*4]public in the criminal justice system" and the impact of removal "on the safety and welfare of the community" are grounded on the idea that the AO's juvenile delinquency history establishes that the Family Court remedies are ineffective to rehabilitate the AO and prevent him from engaging in further criminal activity.

Regarding whether the People improperly obtained the AO's juvenile delinquency records without first obtaining court approval pursuant to Family Court Act § 166, the People argue that they gained access to such records from the Nassau County Attorney's Office, their prosecutorial counterpart in the Family Court, and that such access was not improper. The court finds that it is unclear whether the People were required to seek court approval to review the AO's confidential Family Court records—while Family Court Act § 166 indicates that court approval is necessary to inspect Family Court papers or records, the court notes that Family Court Act § 166 does not address the inspection and review of the AO's file maintained by the Nassau County Attorney's Office. (Family Ct Act § 166.)

In contrast, Family Court Act § 375.1 (1), which governs the sealing of a respondent's records when a delinquency action is terminated in the respondent's favor, specifically addresses the sealing of "all official records and papers . . . relating to the arrest, the prosecution and the probation service proceedings . . . on file with the court, police agency, probation service and presentment agency . . . and not made available to any person or public or private agency." (See also Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 166 [noting that the Family Court Act article 3 provisions{**64 Misc 3d at 269} governing the sealing of juvenile delinquency records afford a "far greater degree of protection" than the confidentiality provision set forth at Family Court Act § 166, and that sealing of records under article 3 includes presentment agency files].)

Assuming, however, that the People properly gained access to the AO's juvenile delinquency records, Family Court Act § 381.2 requires the court to nonetheless reject the People's arguments against removal of the AO's case to the extent that they are based on the AO's history of being adjudicated as a juvenile delinquent. Family Court Act § 381.2 expressly prohibits the use of the AO's juvenile delinquency history, including his past adjudications, past admissions and statements to the court, against him or his interests in any other court. (Family Ct Act § 381.2 [1].)

In Green v Montgomery (95 NY2d 693, 697 [2001]), the Court of Appeals cited to Family Court Act § 381.2 (1) for the proposition that "[a]s a rule, a juvenile delinquency 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], lv denied 20 NY3d 853 [2012] [holding that the trial court erred in considering the defendant's adjudication as a juvenile delinquent in determining his appropriate risk level designation under the Sex Offender Registration Act]; People v Francis, 137 AD3d 91, 95 [2d Dept 2016].) The rationale behind Family Court Act § 381.2 is that "[d]elinquency proceedings are designed not just to punish the malefactor but also to extinguish the causes of juvenile delinquency through rehabilitation and treatment." (Green, 95 NY2d at 697-698.) To that end, a juvenile delinquency adjudication "cannot constitute a criminal conviction," but "[r]ather, a Family Court adjudication is a civil proceeding, and its purpose is to 'supervise and guide a troubled youth.' " (Green, 95 NY2d at 698.)

Likewise, the Second Department has noted that the statutory language in Family Court Act § 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 [citations omitted].)

Thus, the court is bound by the express language of the statute, even if the AO's past juvenile delinquency history might objectively be considered relevant to the question of whether an AO's case should be removed from the Youth Part to the Family Court. (Campbell, 98 AD3d at 13 ["Although we do not {**64 Misc 3d at 270}quarrel with the (New York State Board of Examiners of Sex Offenders') finding that the age of an offender at the time of the offender's first sex offense is relevant to that offender's likelihood of reoffense and the danger to public safety, the Board was without the power to adopt a guideline which contravenes the clear legislative pronouncement set forth in Family Court Act § 381.2"].)

The court is mindful that in People v J.P. (63 Misc 3d 635 [Sup Ct, Bronx County 2019]), that court considered an AO's past juvenile delinquency history as one of several factors relevant to the determination of whether the People had demonstrated the existence of "extraordinary circumstances" that should prevent the removal of the AO's case to the Family Court. However, this court is not persuaded to rely on the AO's juvenile delinquency records in this case for multiple reasons. First, because the court in J.P. did not address Family Court Act § 381.2 (1) in its decision, it is possible that the Bronx Court was not aware of Family Court Act § 381.2 (1)'s prohibition against the use of juvenile delinquency records. Second, this court, respectfully, is not bound by the decision of a justice of coordinate jurisdiction. (Matter of State of New York v Rosado, 25 Misc 3d 380, 416 [Sup Ct, Bronx County 2009]; People v Collins, 186 Misc 2d 818, 820 [Crim Ct, Richmond County 2000], affd 190 Misc 2d 72 [App Term, 2d Dept 2001].) Finally, this court notes that even after taking into consideration the AO's juvenile delinquency history, the court in J.P. nonetheless found that the People had failed to demonstrate "extraordinary circumstances" and ordered that the AO's case be removed to the Family Court.

[1] If the fact that an individual was previously adjudicated a juvenile delinquent is to be considered in assessing factors against him with respect to the potential removal of a case from the Youth Part to the Family Court, then such consideration must be specifically authorized by the legislature, not by this court. (See Campbell, 98 AD3d at 13.) In fact, the legislators have expressly authorized one exception to Family Court Act § 381.2's prohibition against the use of juvenile delinquency records in other courts which is inapplicable here, in that "another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court." (Family Ct Act § 381.2 [2].) Thus, under the express terms of Family Court Act § 381.2, the court may not consider the AO's juvenile delinquency history, as{**64 Misc 3d at 271} extensive as it may be, as a factor weighed against the removal of these cases to the Family Court.

III. Determination of Whether the People Have Proved the Existence of "Extraordinary Circumstances" to Prevent Removal

[2] In this case, having determined that the AO's past juvenile delinquency history and records must be excluded from the query of whether the People have demonstrated the existence of "extraordinary circumstances," the remaining issue for the court is whether the People have proved that the underlying facts of the four pending cases against this AO are so "extremely rare" and "exceptional" that this AO's case should be the "one out of 1,000 cases" that should remain in the Youth Part. (Assembly Debate, Apr. 8, 2017, at 38.) The court finds that while the pending offenses are serious and the conduct with which the AO has been charged is highly troublesome and may certainly warrant considerable punishment and [*6]rehabilitative services, the conduct alleged does not rise to the level of "highly unusual and heinous facts" warranting the denial of removal to the Family Court. (Assembly Debate, Apr. 8, 2017, at 39.)

The court notes that in discussions held on the Assembly floor prior to the passage of the RTA legislation, legislators specifically refrained from providing any determinate standard for the term "extraordinary circumstances," and they specifically contemplated that the meaning of "extraordinary circumstances" would be "determined and shaped by a judge's ruling" after taking into consideration all of the circumstances in each case. (Assembly Debate, Apr. 8, 2017, at 83.) Assembly Member Joseph R. Lentol (D-Brooklyn), the main sponsor of the RTA bill, expressly rejected the notion that four robberies (such as what has allegedly occurred here) would automatically qualify as "extraordinary circumstances," and instead reiterated that judges should consider "guideposts," including whether the crime was committed in a "cruel and heinous manner" and whether the adolescent offender was a "ring leader," in concluding that extraordinary circumstances exist. (Assembly Debate, Apr. 8, 2017, at 85.) It was further stated that in determining whether there are extraordinary circumstances, judges should draw reference in a light most favorable to the juveniles before them. (Assembly Debate, Apr. 8, 2017, at 102.)

In this case, there are no allegations that the AO caused any of the complainants to sustain any physical injuries; nor did he commit any alleged criminal sexual act. The People failed to{**64 Misc 3d at 272} prove that he displayed an actual "firearm" or "deadly weapon" in the commission of any of the offenses. His alleged conduct in committing the four offenses, while troublesome, does not rise to the level of "cruel and heinous" and does not prove that he would be unamenable to or would not benefit in any way from the heightened services offered by the Family Court. (Assembly Debate, Apr. 8, 2017, at 39.) Likewise, the court finds that the People's argument that the AO undertook a "leadership" role because he acted alone is misplaced. If the allegations are true, the AO acted alone and was not, in contrast, a "ringleader" who "threatened and coerced reluctant youths to participate in the crimes." (Assembly Debate, Apr. 8, 2017, at 40.)

In total, the People did not successfully overcome the "very high bar" in proving that "extraordinary circumstances" exist that should prevent removal of these cases. (Assembly Debate, Apr. 8, 2017, at 83.) The court finds that the People have failed to prove the existence of "extraordinary circumstances." The People's motion to prevent removal is denied in its entirety.

Accordingly, because the court finds that the People have failed to prove the existence of "extraordinary circumstances" that should prevent removal of these cases, the matters under FYC-xxxxx-xx/xxx, FYC-xxxxx-xx/xxx, FYC-xxxxx-xx/xxx and FYC-xxxxx-xx/xxx are hereby removed to the Family Court pursuant to CPL 722.23 (1).