Family Court, Erie County, December 16, 2019

John J. Flynn, District Attorney (Meredith M. Mohun of counsel), for plaintiff.

Giovanni Genovese for defendant.

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, dated November 27, 2019, affirmation of Meredith Mohun, Esq. (Assistant District Attorney), dated November 27, 2019, in support of the motion, and affidavit in opposition to the motion to prevent removal by Giovanni Genovese, Esq., dated December 4, 2019, on behalf of the defendant D.B., and oral argument having been held on December 10, 2019, and due deliberation having been had, the court finds the following:

This action was commenced by way of accusatory instruments that charged defendant with robbery in the first degree, as defined by Penal Law § 160.15 (3), attempted robbery in the first degree, as defined by Penal Law §§ 110.00 and 160.15 (3), and endangering the welfare of a child, as defined by Penal Law § 260.10 (1), on October 29, 2019.

Defendant was born on July 2, 2003. Defendant was brought before Youth Part because he was 16 years old when the crimes were alleged to have been committed. Thus, by law defendant is considered an adolescent offender (hereinafter, AO). (See CPL 1.20 [44].)

AO was arraigned on October 29, 2019. Bail was set for AO. AO was brought before this court on October 29, 2019, and bail was continued. A felony hearing was scheduled for November 4, 2019. On November 4, 2019, the felony hearing commenced and concluded on November 6, 2019. The court found reasonable cause to believe that AO had committed a felony and the matter was held over for grand jury presentment. Notwithstanding, on November 20, 2019, the court determined the People could not meet the requirements of CPL 722.23 (2) (c). The People were ordered to proceed in accordance with CPL 722.23 (1).{**66 Misc 3d at 575}

On November 27, 2019, the People filed their motion pursuant to CPL 722.23 (1) (b) to prevent removal to family court. Annexed to the People's motion is an affirmation by Meredith M. Mohun, Assistant District Attorney. Attached to the affirmation are copies of the felony complaints; a misdemeanor information; supporting deposition of Mohammed Uddin, subscribed and verified under penalty of perjury on October 19, 2019; supporting deposition of Biplob Mowla, subscribed and verified under penalty of perjury on October 19, 2019; supporting deposition of Shake Khokan, subscribed and verified under penalty of perjury on October 19, 2019; certified medical records of Mohammed Uddin from Erie County Medical Center (ECMC) dated October 22, 2019; pictures of Mohammed Uddin purported to have been taken at ECMC; supporting deposition of Asif Syed subscribed and verified under penalty of perjury on October 28, 2019; supporting deposition of Naval Binrabbaa, subscribed and verified under penalty of perjury on October 28, 2019; surveillance video from 152 Theodore Street, Buffalo, New York; the transcript of the felony hearing held on November 4, 2019, and continued on November 6, 2019; and a recorded interview of the AO conducted by Buffalo Police Detective Jay Ruether on October 28, 2019, at Buffalo Police headquarters.

Pursuant to CPL 722.23 (1) (a), the court shall order removal of the action to family court unless the district attorney makes a motion to prevent same within 30 calendar days of arraignment. The People filed their motion timely. AO's counsel responded timely. Neither party requested an evidentiary hearing. The parties agreed to proceed on the papers and oral argument.

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." In this case the affirmation and accusatory instruments contain hearsay claims and do not contain allegations of "sworn fact" based upon personal knowledge. As such the contents therein do not fall within the mandate of CPL 722.23 (1) (b). However, the People also rely upon the voluntary statement by AO taken on October 28, 2019; the supporting deposition of Mohammed Uddin, subscribed and verified under penalty of perjury on October 19, 2019; supporting deposition of Biplob Mowla, subscribed and verified under penalty of perjury on October 19, 2019; supporting deposition of Shake Khokan, subscribed and {**66 Misc 3d at 576}verified under penalty of perjury on October 19, 2019; certified medical records of Mohammed Uddin from Erie County Medical Center dated October 22, 2019; supporting deposition of Asif Syed subscribed and verified under penalty of perjury on October 28, 2019; supporting deposition of Naval Binrabbaa, subscribed and verified under penalty of perjury on October 28, 2019; surveillance video from 152 Theodore Street, Buffalo, New York; the transcript of the felony hearing held on November 4, 2019 and continued on November 6, 2019; and a recorded interview of the AO conducted by Detective Ruether on October 28, 2019. The content of these documents falls within the mandate of CPL 722.23 (1) (b).

CPL 722.23 (1) (d) provides that a motion to prevent removal of an action to family court shall be denied unless the district attorney establishes the existence of "extraordinary circumstances." Raise the Age legislation (RTA) does not define extraordinary circumstances. Extraordinary circumstances must be defined and determined on a case by case basis. One can infer from review of the New York Assembly Debate on Assembly Bill A03009C (§ 1, part WWW, Apr. 8, 2017 at 39) that the legislative intent is for the definition to include facts which are unusual and heinous or remarkable. The court, in its discretion, should look for circumstances that go beyond what is regular and foreseeable in the normal course of events and proof that the child is not amenable or would not benefit in any way from services. (Id.)

As articulated in People v J.P. (63 Misc 3d 635, 647-648 [2019]), it is the legislative intent that the extraordinary circumstances requirement be

"a high standard for the DA to meet. And under th[is] bill, denials of transfer to the family court should be extremely rare. . . . Transfer to the family court should be denied only when highly unusual and heinous facts are proven and there is . . . strong proof that the young person in not amenable or would not benefit in any way from the heightened services in the family court." (See NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 at 39.)

We look first to the accusatory instruments which served as the basis for commencement of this action and set forth in detail the factual allegations of the crimes charged. The factual parts of the instruments seem to support the elements of the{**66 Misc 3d at 577} alleged offenses. However, this court does not find the instruments setting forth the behavior of AO to be statements of sworn facts based upon personal knowledge. Since the factual part of an unsworn accusatory instrument cannot be the basis for an extraordinary circumstances finding, the court considers the content of the statements upon which the People argue in the totality demonstrates extraordinary circumstances.

The People argue that AO's conduct, history, character and condition amount to extraordinary circumstances. The People point to an October 19, 2019 incident wherein AO acted with others and allegedly approached Biplob Mowla, Mohammed Uddin, and Shake Khokan on 142 Humason Avenue, Buffalo, New York. AO appeared before this court on charges stemming from that incident. There, AO and his codefendant allegedly shoved a gun into Mr. Mowla's side. AO and codefendants then demanded property from Mr. Mowla. After taking property from Mr. Mowla, AO and codefendant approached Mr. Uddin and demanded property from him. When Mr. Uddin refused to turn over his property, AO and codefendant beat him. As Mr. Uddin was on the ground, AO and codefendant rummaged through his pockets and stole his wallet containing approximately three hundred dollars (the actual dollar amount is unknown) and an iPhone 6. The People contend that as a result of AO's and codefendant's conduct, Mr. Uddin sustained a fracture to his orbital and hemorrhaging to his left eye.

In addition to the foregoing criminal behavior, on October 28, 2019, AO allegedly approached Asif Syed and Naval Binrabbaa while their 41/2-year-old child sat in their vehicle in their driveway at 152 Theodore Street in the City of Buffalo. As AO approached Mr. Syed, he grabbed at his waistband. AO ran up to Mr. Syed and demanded his wallet and his car keys. Mr. Syed testified at the felony hearing that he felt pressure, but never saw a gun. Mr. Syed testified at the felony hearing that AO reached into his pocket where he had his keys and his wallet. Mr. Syed testified that he struggled with AO attempting to avoid giving up his property. Mr. Syed testified that he was fearful that if he gave up his car keys that he would never see his child again, because his child was still inside the car. Mr. Syed testified he threw his hot coffee in AO's face after struggling with him. AO then punched Mr. Syed in the face and ran away. While AO was attempting to take Mr. Syed's wallet, AO's codefendants, one being a 15-year-old minor, and the other being an adult, can be seen in the video struggling with Mrs.{**66 Misc 3d at 578} Binrabbaa until they had taken her purse. After which, they ran off. Mr. Syed's version of events was verified in surveillance video shown to the court during the felony hearing. AO was subsequently arrested that evening, and with his mother present, gave a statement to Detective Ruether. The statement was video recorded and submitted as an exhibit to the People's motion.

Defense counsel concedes that AO is charged with two robberies that occurred within nine days of one another. However, counsel argues that the facts alleged relative to the October 19th robbery are insufficient for a finding of extraordinary circumstances. According to counsel, the description of the robbery given by the victims shows that AO did not possess the handgun, did not strike the complainant with a gun, and did not cause the injuries to the complainant. As for the October 28th robbery, counsel argues that AO never possessed a gun and did not cause injury and thus there is nothing extraordinary about the crime. Counsel refers to the video shown at the felony hearing and Mr. Syed's testimony that he never saw a gun. Finally, while not disregarding the harm, counsel contends that removal to family court will not substantially diminish the safety and welfare of the community.

The intent of RTA and the legislative discussion of "extraordinary circumstances" direct the court to factors which should be considered in its determination. Factors such as (1) whether the AO committed a series of crimes over a series of days, (2) whether the AO 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 youth into committing the crimes before the court.

AO is charged with multiple felonies committed within 10 days of one another. As a result of the October 19th robbery the complainant suffered a fractured orbital and hemorrhaging to his left eye. The court is not persuaded by counsel's reasoning as it relates to why AO should not be responsible for the injuries. Counsel argues that it was not the AO who possessed the weapon; thus it could not have been the AO who caused the injury. This court disagrees. Mr. Uddin, in his sworn statement, states that he was struck with a gun and then "blacked out." The supporting deposition of Mr. Khokan states that even after Mr. Uddin was struck with a gun, AO and codefendant continued to beat him. Mr. Khokan further stated that after Mr. Uddin tried to stop the assailants from taking his property{**66 Misc 3d at 579} "they started to beat him [Uddin] up . . . they started hitting him and when he fell to the ground they went through his pockets and took everything from him." Mr. Uddin suffered injuries which required hospitalization and care. The People provided the certified medical records.

During the October 28th robbery, AO struggled with the complainant while attempting to steal his keys and wallet. Complainant testified during the felony hearing that his 41/2-year-old son was sitting in a car seat while he fought with the AO. Complainant did so even though he thought AO had a gun because he believed AO was going to take his vehicle with his child inside. Further, the video played during the felony hearing shows AO as being the initiator of the robbery. AO approached the complainant, and thereafter his codefendants, one being a 15-year-old child, approached Mrs. Binrabbaa. This court can infer from the evidence that AO was the leader of this offense.

Pursuant to CPL 722.23 (2) (c) (i), the robbery charge which is alleged to have occurred on October 19th was not removed to family court because the People met their burden in establishing significant physical injury. The court should weigh that in its determination on whether extraordinary circumstances exist as it relates to the case before it now. Considering the totality of AO's conduct during the October 19th and October 28th robberies, the court finds AO to have acted in a cruel and heinous manner. (People v A.T., 63 Misc 3d 336 [Sup Ct, Erie County 2019].) Moreover, AO appeared to be the leader in the October 28, 2019 crime.

Based upon the foregoing, the court finds "extraordinary circumstances" exist to prevent removal of this action to family court. Hence, the People's motion to prevent removal is granted and the matter shall remain in Erie County Youth Part.