County Court, Nassau County, June 15, 2021

Joyce A. Smith, Acting District Attorney (Vincent Bruni of counsel), for plaintiff.

George A. Terezakis for adolescent offender.

The defendant in this matter, M.R. (DOB 00/00/00), is charged as an adolescent offender (AO) in the Youth Part of the County Court in Nassau County. The People have moved for an order pursuant to CPL 722.23 (1) directing that this matter remain in the Youth Part and not be removed 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's motion opposing removal is determined as follows:

The AO is charged by way of felony complaint with one count of rape in the third degree (Penal Law § 130.25 [3]). The charge filed against the AO arises from an incident alleged to have occurred on July 31, 2020, at approximately 1:00 a.m. in L.B., Nassau County, New York. The AO was arraigned in the Youth Part on May 4, 2021. At that appearance, the [*2]People conceded that the case does not qualify for a statutory "sixth-day appearance" under CPL 722.23 (2), because the AO is charged with rape in the third degree, which is not a "violent felony defined in section 70.02 of the penal law." (See CPL 722.23 [2] [a].) The court thereafter set down a motion schedule for the People to file their motion opposing removal based on "extraordinary circumstances."^[FN1] (CPL 722.23 [1] [d].)

The People's motion opposing removal consists of the affirmation in support of People's motion to prevent removal to Family Court pursuant to CPL 722.23 by Assistant District Attorney Vincent Bruni, Esq., with exhibits attached thereto{**72 Misc 3d at 793} (Bruni affirmation in support of mot). The People argue that extraordinary circumstances exist which warrant retaining this case in the Youth Part, in that there is a statute of limitations "loophole" which would prevent the Family Court from having jurisdiction over the case if it were removed from the Youth Part. (Bruni affirmation in support of mot ¶ 11.)

According to the People, the AO is alleged to have committed the criminal act approximately six months before he turned 18 years old, and he was arraigned on this case on May 4, 2021, after he had turned 18. (Bruni affirmation in support of mot ¶¶ 4, 5.) They contend that the Family Court Act places an upward age limit on when a juvenile delinquency petition may be filed against a respondent, and that the statutory limits for filing require that the individual be within a certain age range when the criminal act was committed and when the petition is filed. (Bruni affirmation in support of mot ¶¶ 11, 12.) They further contend that these statutory filing limits result in a loophole for a small group of defendants who commit crimes when they are 17 years old. (Bruni affirmation in support of mot ¶ 12.) The People further argue that cases such as this one involving this "loophole" are "extraordinary in and of themselves" because unless the case remains in the Youth Part, the AO cannot be held responsible for his criminal act now that he is 18 years old. (Bruni affirmation in support of mot ¶ 12.)

The AO's counsel argues that the People have failed to establish the existence of any "extraordinary circumstances" which justify retaining the AO's case in the Youth Part. (Corrected affirmation in opp to People's mot to prevent removal to the Family Court by George A. Terezakis, dated June 2, 2021 [Terezakis affirmation in opp to People's mot], ¶ 8.) The AO further argues that the People inappropriately categorize the AO's present age of 18 years old as an "extraordinary circumstance" and have not cited to any other factors related to the AO, or to the circumstances of his alleged commission of the offense, which might truly be said to constitute "extraordinary circumstances." (Terezakis affirmation in opp to People's mot ¶ 10.)

The AO further argues that there are many mitigating factors relating to this AO which outweigh the single claimed "extraordinary circumstance." In support of the same, the AO's counsel attaches an affidavit in support from the AO's mother, with several exhibits attached thereto. (Terezakis affirmation in opp to People's mot ¶ 11.) The AO argues that the People are asking the court to rewrite the Raise the Age (RTA) statute{**72 Misc 3d at 794} to create a judicial exception that would disqualify an [*3]otherwise eligible AO from removal to the Family Court simply because he had turned 18 years old. (Terezakis affirmation in opp to People's mot ¶ 18.)

On May 4, 2021, the AO was charged by way of felony complaint with rape in the third degree (Penal Law § 130.25 [3]). It is alleged in the felony complaint (exhibit 1 to Bruni affirmation in support of mot) that on or about July 21, 2020, at about 1:00 a.m., at the N.B.C., in L.B., Nassau County, the AO engaged in sexual intercourse with the victim (DOB 00/00/00), penis to vagina, despite the victim saying "no" and "stop." It is further alleged that the AO did not have permission or authority to engage in sexual intercourse with the victim. The AO's date of birth is X. 00, 0000. (Bruni affirmation in support of mot ¶ 4.) The AO was 17 years old on the date of the alleged criminal incident and was 18 years old when the case was commenced in the Youth Part of the County Court in Nassau County. (Terezakis affirmation in opp to People's mot ¶ 3.)

The main issue raised in the parties' respective motion papers is whether the AO's age, i.e., 18 years old, constitutes an "extraordinary circumstance" which warrants retaining his case in the Youth Part. The People's motion opposing removal is filed pursuant to CPL 722.23 (1), which provides, in pertinent part, that within 30 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) (d) requires the court to deny the People's motion "unless the court makes a determination upon such motion . . . that extraordinary circumstances exist that should prevent the transfer of the action to family court."

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].) After referring to the common dictionary definition^[FN2] of the term "extraordinary," and having reviewed the legislative history of the RTA legislation as a further statutory{**72 Misc 3d at 795} interpretation aid,^[FN3] the court interprets "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"^[FN4] and which warrant retaining the case in the Youth Part instead of removing it to the Family Court. [*4]

Legislators debating the Raise the Age bill contemplated that the "extraordinary circumstances" standard would be satisfied 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." (NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 [Assembly tr] at 39.) The legislators specifically declined to provide definitive examples of instances where a case would rise to the level of "extraordinary circumstances." (Assembly tr at 39.) They advised, however, that in assessing whether the People have proved "extraordinary circumstances," the judge should consider all the particular circumstances of the youth, including both aggravating and mitigating circumstances. (Assembly tr at 39-40.)

In this case, other than briefly mentioning that the victim in this case may be left without an opportunity for a final order of protection, the People fail to address any specific facts or circumstances relating to this particular AO, including whether this AO acted in a "highly unusual" and/or "heinous" manner. (Assembly tr at 39.) To the contrary, the only specific fact about this AO that the People address is that he is now 18 years old, and the crux of their argument in opposing the removal is that his age constitutes an "extraordinary circumstance." Their argument is based on what appears to be a conflict between multiple Family Court Act provisions which control and{**72 Misc 3d at 796} otherwise affect the deadlines for filing a juvenile delinquency petition against an individual.^[FN5]

The People do not refute or otherwise address any of the mitigating circumstances relating to this AO that are proffered by the AO's counsel. They argue that cases involving a "small group of defendants who commit crimes when they are 17 years old" are "extraordinary in and of themselves," because unless their cases are retained in the Youth Part, such a defendant cannot be held responsible for his or her criminal act if a Family Court petition is not filed before he or she is 18 years old. (Bruni affirmation in support of mot ¶ 12.)

The court is mindful of the People's argument that the practical effect of removing this AO's case would likely be "tantamount to dismissing the case and barring its prosecution in any [*5]court"; and that such removal would likely give this AO "a free pass for these actions," and may leave the victim without the opportunity for receiving a final order of protection. (Bruni affirmation in support of mot ¶ 17.) Such anticipated ramifications of removing the AO's case are irrefutably serious and are very concerning to this court.

However, the court finds that if the People's motion opposing removal were granted in this particular case, the court would essentially be creating a judicial exception to the removal of cases as set forth in CPL 722.23 (1) (a), which would disqualify any AO who otherwise would have his or her case removed to the Family Court, but for his or her age. The court finds that it cannot properly do such under well-settled principles of statutory interpretation and construction. (See People v Buyund, {**72 Misc 3d at 797}179 AD3d 161, 168 [2d Dept 2019] [quoting, "In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning"].) If the legislature intended that there be such an exception disqualifying 18-year-old AOs from having their cases removed to the Family Court, it could have clearly said so in the statute. (See People v Buyund, 179 AD3d at 169 ["(W)e decline to rewrite the statute to add language that the Legislature did not see fit to include"].)

The People have articulated what appears to be an omission or oversight in the relevant Family Court Act provisions. Such has been recognized by courts in other jurisdictions and by respected scholars.^[FN6] However, the court is nonetheless constrained to enforce CPL 722.23 as it is written, even if it leads to potentially undesirable results. "The judicial function is to interpret, declare and enforce the law, not to make it, and it is not for the courts to correct supposed errors, omissions or defects in legislation." (People v Buyund, 179 AD3d at 170.) The People are correct that the legislature did not address the apparent statute of limitations "loophole" in the Family Court Act. To the extent, however, that the legislature failed to address the same, it does not mean that this court can or should assume the legislature's role and rewrite the statute.

As the People's motion opposing removal fails to address any specific aggravating or mitigating factors relating to this AO other than his age, and based on the foregoing, the court is constrained to deny the People's motion and the AO's case shall be removed to the Family Court forthwith.