Supreme Court, Nassau County, January 23, 2019

Madeline Singas, District Attorney, Mineola, for plaintiff.

Law Office of David Mirsky, Mineola, for defendant.

The adolescent offender in this action, along with his adult codefendants, has been indicted and charged with three counts of attempted murder in the second degree in violation of Penal Law §§ 110.00 and 125.25, a B felony; three counts of attempted assault in the first degree in violation of Penal Law §§ 110.00 and 120.10, a C felony; three counts of assault in the second degree in violation of Penal Law § 120.05 (2), a D felony; four counts of criminal mischief in the third degree in violation of Penal Law § 145.05 (2), an E felony; six counts of intimidating a victim or witness in the third degree in violation of Penal Law § 215.15 (2), an E felony; and four counts of criminal possession of a weapon in the fourth degree, in violation of Penal Law § 265.01 (2), an A misdemeanor.

The Raise-the-Age Legislation

As outlined in depth in this court's prior decision, dated December 11, 2018, New York passed Raise-the-Age legislation (RTA) gradually increasing the age of criminal responsibility within the state by creating a new class of offender, the adolescent offender (AO). An AO's case is to be heard in the Youth Part of a local superior court (CPL 722.10). The Youth Part is required, within six days of the arraignment of an AO charged with a violent felony as defined in Penal Law § 70.02, to review the accusatory instrument and any relevant facts to determine if a basis exists for retaining the matter in the Youth Part or if it should be removed to the Family Court (CPL 722.23 [2] [a], [b], [c]). This court previously undertook that review, and, in an order entered December 11, 2018 (62 Misc 3d 735 [Nassau County Ct 2018]), directed that the matter be removed to [*2]Family Court. The court expressly noted, in its order, that the People failed to prove, by a preponderance of the evidence, a clear basis for retaining the instant matter in the Youth Part{**63 Misc 3d at 246} pursuant to CPL 722.23 (2). Accordingly, the court stated that the matter would proceed pursuant to CPL 722.23 (1), which permits the People to file a motion to prevent removal within 30 days of the arraignment based on extraordinary circumstances.

The People's Motion

By motion dated December 18, 2018,^[FN*] pursuant to CPL 722.23 (1), the People seek to prevent removal of this action to Family Court and to have the adjudication of this AO's case retained in the Youth Part. In so doing, the People state that extraordinary circumstances exist warranting retention within the meaning of CPL 722.23 (1). The People argued that factors such as (1) the seriousness of the crime; (2) the aggravating circumstances surrounding the crime not captured in the accusatory instruments; (3) the impact of removal to Family Court on public confidence in the criminal justice system; (4) the impact of removal on the safety and welfare of the community; and (5) the impact of removal on the victim should prevent removal of the case to Family Court.

Factual Allegations

In setting forth the factual allegations in their motion papers, the People added additional contentions and context to the facts of the assault which the People stated were not adequately captured by the allegations in the accusatory instrument. The People submitted these facts to present a fuller picture of the events leading up to the assault.

The People assert that the incident began on October 20, 2018, when the younger brother of one of the assault victims was walking home across the fields of the Park Avenue School in New Cassel. The boy was accosted by two Hispanic men who asked if he was affiliated with any gang or group and tried to rob him. The boy's older brother and two of his friends ran to the boy's aid and escorted him home. The three then approached the two Hispanic men, who said they were members of MS-13 and that the three were in their "spot." The two men were then joined by the AO and his adult codefendants who surrounded the three victims and assaulted them with two knives, a bat, a large stick, and a machete. One victim was stabbed in the back six times and hit over the head with the{**63 Misc 3d at 247} baseball bat. Another victim was hit in the arm with a baseball bat. A third victim had the machete swung at him.

The group, including the AO and his adult codefendants, then subsequently allegedly attempted to further assault or intimidate the victims on or about November 2, 2018, at 1:45 a.m. One of the victims stated that the group approached his car, where he was sitting with the other two victims. The AO and his adult codefendants were carrying a long stick, a metal golf club and a dark colored hammer. One of the group yelled, "Yo, motherfucker, we know who you guys are!" The group, including the AO and his adult codefendants, then picked up large rocks and stones and threw them at the vehicle as it drove away, causing large dents, scratches, and chipping the paint.

[*3]The People's Contentions

The People argue that the injuries suffered by the victim who was stabbed highlight the seriousness of the crime. The knife narrowly missed the victim's spinal cord, which if injured by the knife, could have caused the victim paralysis or even death. The People further argue that the actions that precipitated the assault, i.e., the attempt to rob and/or recruit one of the victim's brothers, demonstrate the extraordinary circumstances of these crimes in that they were motivated solely by retaliation and intimidation so the AO and his adult codefendants could establish control and dominance over the school grounds and surrounding neighborhood. The People state that the AO had a long history of antisocial behavior. The AO's school records show evidence of tardiness, truancy, disorderly behavior, use of racial slurs, possession of drugs, and acts of intimidation, harassment and bullying.

The People also assert that permitting this case to be removed to Family Court would undermine the confidence of both the public and victim in the criminal justice system and would undermine the safety and welfare of the community.

The Defense's Contentions

The AO, through his counsel, opposes the People's motion to have his case retained in the Youth Part. In so doing, the defense counsel argues that no extraordinary circumstances exist warranting retention of his case in the Youth Part. Addressing the People's contentions, defense counsel noted that the AO may have been recruited into the group in the exact same way as in the incident immediately prior to the assault. Defense counsel argues that this creates a mitigating factor{**63 Misc 3d at 248} supporting the case's removal to Family Court in that the fact that the AO was likely coerced and intimidated into joining MS-13 squarely places the AO into the category of offender that the RTA was designed to help.

Conclusions of Law

As noted, the presumption of the RTA is that cases involving AOs will be removed to Family Court for adjudication. There are, however, specific exceptions to this rule, including, as noted, the provisions of CPL 722.23 (1), which provides, in paragraph (d), that courts are to deny motions to prevent removal of AO actions to Family Court unless a determination is made that extraordinary circumstances exist warranting retention of the case in the Youth Part.

The term "extraordinary circumstances," however, is undefined in the statute. At the time of this writing, only one court has considered the meaning of the phrase in the RTA context (People v D.L., 62 Misc 3d 900 [Fam Ct, Monroe County 2018]). The legislature, for its part, specifically contemplated that the courts would "determine[ ] and shape[ ]" the meaning of extraordinary circumstances in evaluating the factors of each individual case (see NY Assembly Debate on Assembly Bill A03009C, part WWW, Apr. 8, 2017 [Assembly tr] at 83-85). However, while calling on the courts to undertake this determination, the legislature, in its deliberations, did provide guidance on the meaning of extraordinary circumstances.

Extraordinary Circumstances

Immediately prior to the passage of the RTA, discussions were held on the Assembly floor concerning the impact of the RTA legislation and how it would change the adjudication of an AO. As part of these discussions, it was noted that other than in the case of the most serious felonies, which were specifically enumerated in the statute, denying removal of a case to the Family Court would be "extremely rare" (Assembly tr at 38-39). The phrase "extraordinary [*4]circumstances" itself was described as applying to instances where "highly unusual and heinous facts" were demonstrated and "there is a strong proof" that the AO would "not [be] amenable or would not benefit . . . from the heightened services" offered in the Family Court (id. at 39).

The RTA's main sponsor, Assembly Member Joseph R. Lentol (D-Brooklyn), framed the discussion of extraordinary circumstances in terms of aggravating and mitigating factors that a court could consider. Among the aggravating factors that a{**63 Misc 3d at 249} court might consider were (1) whether the AO had committed a series of crimes over many days; (2) whether the AO had acted in an especially cruel and/or heinous manner; and (3) whether the AO was a leader of the criminal activity who had threatened or coerced other reluctant youths into committing the crimes before the court (Assembly tr at 40). In contrast to the short list of aggravating factors a court could consider, the Assembly set forth a lengthy, comprehensive list of mitigating factors. These factors include economic difficulties faced by the AO, substandard housing the AO may have lived in, educational challenges experienced by the AO; and emotional/psychological difficulties the AO may have, such as lack of insight, susceptibility to peer pressure due to immaturity, the absence of positive role models or positive behavioral role models in the AO's life, and abuse of alcohol or drugs (id.).

The Assembly envisioned that the courts, in assessing these aggravating and mitigating factors would fashion a standard with a "very high bar" for retention of cases in the Youth Part, a standard which would take into consideration all of the factors in a given case and where, ultimately, "one in a thousand" cases would be held in the criminal court and the rest would go to Family Court (Assembly tr at 83-85).

It is worth noting, in the first instance, that the People, in their motion papers, failed to evaluate whether the facts and circumstances leading up to this particular AO's involvement in the instant crimes warranted retention of the matter in the Youth Part or removal of the matter to the Family Court. Rather, the People focused mainly on the facts of the crime itself and an argument that removing the instant AO case would undermine public confidence in the judiciary.

The court is persuaded that a balancing of the factors set forth by the legislature is the proper manner in which to determine if extraordinary circumstances exist in a given AO case. In examining the factors articulated by the Assembly, there is no evidence that would lead the court to conclude that aggravating circumstances exist. There is no evidence that the AO committed numerous crimes over several days. While the assault was violent, there is no evidence in the record which would permit the court to conclude that it was the AO who actually stabbed the most seriously injured victim in the back, a point explicitly conceded by the People. There is also no evidence in the record that the AO was a leader of the assault or that he was one of the individuals responsible for the attempt{**63 Misc 3d at 250} to coerce and intimidate the victim's younger brother into joining the group.

In examining the potential mitigating circumstances, the court notes that while the People state that the AO's school records show evidence of tardiness, truancy, disorderly behavior, use of racial slurs, possession of drugs, and acts of intimidation, harassment and bullying, these are some of the exact mitigating factors enumerated by the legislature. In addition, there is no evidence in the record showing that the AO is not amenable to services. The court finds, then, that having balanced the aggravating and mitigating factors in this case, there is no basis for retaining the matter in the Youth Part.