County Court, Nassau County, April 13, 2020

Donald Rollock for defendant.

Madeline Singas, District Attorney (Tova Simpson of counsel), for plaintiff.

The juvenile offender (JO), E.S.B. (DOB 00/00/2004), is charged by indictment with one count of assault in the first degree (Penal Law § 120.10 [1]), one count of gang assault in the first degree (Penal Law § 120.07), and one count of assault in the second degree (Penal Law § 120.05 [2]). Defense counsel has moved for an order removing the JO's case to the Family Court pursuant to CPL 722.20 and 722.22. The People have filed opposition to the JO's motion for removal, and the JO has filed a reply affirmation. The JO's motion for removal is determined as follows:

The charges filed against the JO arise from an incident alleged to have taken place on January 8, 2020, at approximately 2:40 p.m. in U., Nassau County, New York. It is alleged that on that date and at that time, the JO and his codefendant adolescent offenders/juvenile offenders, individually and aiding and abetting and being aided and abetted by each other and with others, attacked the victim in this case and caused him to sustain serious injuries, including by means of using a deadly weapon/weapons. The JO was arraigned on the indictment on March 11, 2020.

The JO argues that his case should be removed to the Family Court or, in the alternative, requests a hearing to permit the court to make a factual and legal determination. The JO's counsel argues that the subject incident was a "melee" between two rival gangs. Defense counsel further argues that several factors exist which warrant removal of the JO's case including, inter alia, uncertainties as to this JO's actual role and involvement in the fight, as well as the fact that the objective evidence establishes that this JO was not the person who introduced any weapons into the "brawl," which was "ongoing prior to his alleged involvement." (Affirmation in support of defendant's CPL 722.20 and 722.22 mot by Donald Rollock, Esq., dated Feb. 11, 2020 [Rollock affirmation in support of mot for removal], ¶¶ 4, 6, 8, 9, 12.) Defense counsel further argues that this JO's specific role "is more analogous to the conduct" of another individual, in that this JO was "interfering or fighting with the other active participants who were fellow gang members" of the complainant. (Rollock affirmation in support of mot for removal ¶ 13.)

{**68 Misc 3d at 474}In opposition to the JO's motion, the People argue, inter alia, that the victim showed up to what he believed was going to be a one-on-one fistfight with no weapons, but the subject incident was an assault by four juvenile/adolescent offenders who jointly participated in the assault on the victim with the use of weapons. (People's affirmation in opp to defendant's mot by Tova B. Simpson, dated Feb. 11, 2020 [Simpson affirmation in opp], ¶ 5.) The People further argue that, while this JO did not possess any weapons himself, he did join in on the fight, and once the victim was on the ground (having been hit with baseball bats), the JO repeatedly kicked the victim in and about the head. (Simpson affirmation in opp ¶ 5.)

The People further argue that although the video does not clearly show the JO's face, and the JO cannot be identified only from the video, the JO has been identified by witnesses, who corroborate the actions of the JO as seen on the video. (Simpson affirmation in opp ¶ 14.) Such actions, according to the People, include running over to join in on the fight, going straight to where the victim was on the ground from having been beaten by others, and proceeding to kick the victim in and about the head. (Simpson affirmation in opp ¶ 14.)

In reply thereto, the JO's counsel further elaborates upon his prior arguments and purports to further identify weaknesses in the People's underlying case. Such arguments include that the complainant was a "willing combatant" and that the People, in declining to charge the complainant in connection with the subject incident, have "taken sides" as to two rival gangs "based upon who was injured most in this incident." (Reply affirmation of Donald Rollock, Esq., dated Apr. 9, 2020 [Rollock reply affirmation], ¶¶ 6, 7, 11.)

The JO's counsel further criticizes the People's assertion that the Family Court would merely give the JO a "slap on the wrist" if his case were removed from the Youth Part. (Rollock reply affirmation ¶ 14.) Counsel further argues that intervention by the Family Court "at this very early stage in this child's life is what is needed" and asserts that the JO's mother is seeking to move with the child out of the Long Island area and out of New York State after the current pandemic circumstances have settled down. (Rollock reply affirmation ¶ 15.)

The JO's motion for removal is filed pursuant to CPL 722.22, which provides, in pertinent part, that the court "may" order {**68 Misc 3d at 475}removal of the JO's case to the Family Court if, after consideration of numerous enumerated factors, the court determines that removal would be in the interests of justice. (CPL 722.22 [1] [a].) The court is to "examine individually and collectively" the following factors:

"(a) the seriousness and circumstances of the offense;

"(b) the extent of harm caused by the offense;

"(c) the evidence of guilt, whether admissible or inadmissible at trial;

"(d) the history, character and condition of the defendant;

"(e) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

"(f) the impact of a removal of the case to the family court on the safety or welfare of the community;

"(g) the impact of a removal of the case to the family court upon the confidence of the public in the criminal justice system;

"(h) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and

"(i) any other relevant fact indicating that a judgment of conviction in the criminal court would serve no useful purpose." (CPL 722.22 [2].)

Preliminarily, the court finds that the JO's arguments analogizing this case to that of J.H. are misplaced. Mr. H. was charged as an adolescent offender (AO) in this matter,^[FN1] and his case was removed to the Family Court under a different statutory provision, CPL 722.23, which governs the removal of an AO's case to the Family Court. The procedure for removal of an AO's case resulted from the recently enacted Raise the Age legislation, which changed the manner in which 16 and 17 year olds are treated in the criminal justice system. However, the RTA legislation did not change the law governing juvenile offenders such as the JO in this case.^[FN2]

Accordingly, the court is constrained to apply the rubric applicable to the removal of JOs' cases under CPL 722.22.{**68 Misc 3d at 476} Furthermore, based on the statutory language and the case law (including case law involving JOs' motions for removal predating the RTA legislation), it is the JO's burden to establish that removal is warranted based on the court's consideration of the enumerated statutory factors.^[FN3]

Considering the first two enumerated factors, (a) the seriousness and circumstances of the offense and (b) the extent of the harm caused by the offense, the court is not persuaded by arguments from defense counsel relating to the JO's specific alleged role in the overall melee. The statutory language clearly requires the court to consider "the offense" and the JO concedes that the subject incident was "serious" and that it resulted in an individual "sustaining serious injuries." (Rollock affirmation in support of mot for removal ¶ 12.)

It appears from both parties' motion submissions that the underlying incident was allegedly motivated by gang violence, an issue that is becoming increasingly worrisome within the community at large. Moreover, while the JO's counsel argues that his specific role within the incident was minor when compared to that of his codefendants, the People have persuasively argued that they have evidence indicating that this JO actively participated in violently attacking the victim in this matter. Such alleged conduct is still serious and concerning to this court, even if it is "lesser" in nature compared to stabbing the complainant or hitting him in the head with a bat.

The court further notes that, to the extent that the legislature intended for the court to consider the JO's individual level of participation when making its "interests of justice" determination, it could have specifically stated so in its list of enumerated factors. To that end, the court finds it relevant that, in a{**68 Misc 3d at 477} different subdivision of the same statutory provision, the court is specifically directed under different circumstances to consider a JO's level of participation relative to that of other codefendants in the same offense.^[FN4] In contrast, such a factor is not included in the list of enumerated factors to be considered by the court when making its "interests of justice" determination.

Bearing in mind the court's obligation to "interpret a statute to effectuate the intent of the Legislature, and when the statutory 'language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words' used," and further bearing in mind the well-settled "principle that courts are not to legislate under the guise of interpretation,"^[FN5] the court finds that, in this case, the court is constrained to consider the overall "offense," rather than focus on the JO's specific actions. (CPL 722.22.)

The third relevant factor is the "evidence of guilt, whether admissible or inadmissible at trial." Obviously, it is not the court's role, particularly at this juncture, to determine the JO's ultimate guilt or innocence with respect to the crimes charged. However, even to the extent that the JO may have raised potential weaknesses in the People's underlying case (including their ability to establish the JO's specific role in the fight/assault),^[FN6] the court finds that, for the purpose of opposing the JO's motion, the People have asserted several cogent and persuasive arguments regarding evidence of the JO's guilt, including by citing to corroborating testimony from witnesses, and to an alleged "retaliatory" assault of the JO and his father. (Rollock affirmation in support of mot for removal ¶ 14; Simpson affirmation in opp ¶¶ 14, 15.)

Regarding the JO's "history, character and condition," defense counsel argues that the JO has no criminal record and/or prior contact with the criminal justice system. (Rollock affirmation in support of mot for removal ¶ 15.) In reply, defense counsel also discusses the plans of the JO's mother to{**68 Misc 3d at 478} relocate out of the Long Island/New York area. The People do not specifically address this factor.

The court finds that both parties assert conclusory and generalized arguments addressing the following additional enumerated factors: "the purpose and effect of imposing upon the defendant a sentence authorized for the offense"; "the impact of a removal of the case to the family court on the safety or welfare of the community"; and "the impact of a removal of the case to the family court upon the confidence of the public in the criminal justice system," and accordingly finds such arguments to be largely unpersuasive. However, the court does agree with defense counsel's point that the People greatly mischaracterize the role of the Family Court and the potential dispositions available therein when they assert that the JO would receive a "slap on the wrist" if his case was removed to the Family Court. (Simpson affirmation in opp ¶ 16.)

After considering the enumerated factors discussed above, both individually and in the totality, the court finds that the JO has failed to establish that removal of this JO's case to the Family Court would be "in the interests of justice," particularly in light of the seriousness of the offenses charged and the extent of harm caused by the offenses, and, although denied by defense counsel, the allegations that the JO violently kicked the complaining witness in the head during the subject incident. Moreover, the court does not find that the JO has established the necessity of a hearing on this matter.

Accordingly, the JO's motion for removal is denied in its entirety and the JO's case will remain in the Youth Part for all future proceedings.