Supreme Court, Kings County, May 29, 2020

Eric Gonzalez, District Attorney, School Advocacy Bureau, Brooklyn (Johanne Macajoux of counsel), for plaintiff.

The Legal Aid Society, Criminal Defense Practice, Brooklyn (Roy Wasserman of counsel), for adolescent offender.

The defendant is charged as an adolescent offender (AO) and, along with a codefendant, stands indicted by the grand jury on 20 counts. He is charged with multiple counts of robbery in the first degree (Penal Law § 160.15 [4]), robbery in the second degree (Penal Law § 160.10 [1]), robbery in the third degree (Penal Law § 160.05), grand larceny in the fourth degree (Penal Law § 155.30 [5]), and other charges, all allegedly occurring on the same date with the same codefendant.

The People have moved, by notice of motion dated February 20, 2020, pursuant to CPL 722.23 (1) for an order preventing removal of the instant case to Family Court, citing the existence of "extraordinary circumstances." Defense submitted written opposition dated March 2, 2020, and the matter was adjourned for decision on the papers. Upon a reading of the papers submitted, and due deliberation, the People's motion to deny removal to Family Court is granted. The court now memorializes its findings of fact and law as follows:

Although the AO herein is charged with violent felonies as defined by Penal Law § 70.02 (1) (a) and (b), the People conceded that the facts as delineated, failed to meet any of the three prongs as enumerated in CPL 722.23 (2). Therefore, the matter, as charged, is presumptively subject to removal, unless the People can demonstrate that extraordinary circumstances exist that would prevent the transfer of the matter to Family Court. (See CPL 722.23 [1] [d].)

The People contend that the AO has exhibited a blatant disregard for public safety and the criminal justice system by committing multiple violent criminal offenses while enrolled in the intensive community monitoring (ICM) program operated by the Department of Probation, and the Families Rising {**69 Misc 3d at 280}program.^[FN*] The AO was placed on ICM on December 16, 2019, after being released by the court on IND-xxxx/xxxx in which the AO was arrested and indicted for attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]), and other related charges.

The People now contend that after being released, the AO, acting in concert with another, committed multiple acts of robbery, grand larceny, unlawful imprisonment, assault, and criminal possession of stolen property on January 15, 2020. During the robberies, the AO and codefendant intimated that they possessed a gun, although none was recovered. The People further contend that this is not the first time that the AO has failed to comply with the terms of his release to ICM and Families Rising. The People aver that the AO was enrolled in those programs previously for three Family Court matters when the AO was indicted on the pending attempted murder case.

The People further contend that although this matter is presumptively removable to Family Court, the AO's remaining matter for attempted murder in the second is not. Therefore, they aver, it would be in the interest of justice for both the community and the AO if the present matter stayed in the Youth Part whereby a possible global disposition could be crafted. Moreover, they argue, should this matter be removed to Family Court, it could lead to different and/or duplicative judicial processes and outcomes, which would not be in the interest of justice to the community or to the AO. Lastly, the People note that although the AO has no criminal convictions, he was adjudicated a youthful offender on August 14, 2018, on a count of robbery in the second degree, and therefore his possible sentencing exposure is greater and as such, a possible global disposition would benefit the AO.

The defense argues that although the AO is charged with multiple counts of robbery and other charges, the People's motion rests largely not on the AO's involvement in the instant matter, but on the pending attempted murder case. As a result, the defense contends that the People have failed to show extraordinary circumstances to prevent removal of this matter to Family Court.{**69 Misc 3d at 281}

Pursuant to CPL 722.23, for adolescent offenders, all eligible matters shall be removed to Family Court after arraignment, unless: (1) the district attorney brings a motion to prevent transfer and the court finds that offense should not be removed because of extraordinary [*2]circumstances, or (2) the youth is charged with a violent felony offense and the People prove, by a preponderance of the evidence, one or more of the following as set forth in the accusatory instrument:

1. the defendant caused significant physical injury to a person other than a participant in the offense; or

2. the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the Penal Law in furtherance of such offense; or

3. the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the Penal Law.

The New York State Legislature, when contemplating raising the age of criminal culpability for 16- and 17-year-old youth, had the purpose and general idea that those young people, who are charged with a crime, may be treated in a more age appropriate manner, and that the changes implemented would reflect the evidence that the current system had not been effective in deterring and preventing future crime, while maintaining a mechanism that youth, on a case by case basis, may be tried in adult criminal court when the circumstances warranted (see The New York State Senate, Senate Bill S4121, 2017-2018 Legislative Session, Sponsor Memo, https://www.nysenate.gov/legislation/bills/2017/s4121). The guidelines that the courts must follow are set forth in article 722 of the Criminal Procedure Law. However, as is the case here, the legislature and the text fall short of defining what would constitute "extraordinary circumstances." As such, extraordinary circumstances must be determined on a case by case basis. The court notes that other Youth Part jurisdictions in the state have already contemplated this issue, with the outcomes dependent on the judges' interpretation of the law and facts before them. That being said, appellate guidance as to this issue remains lacking.

In the Merriam-Webster dictionary, "extraordinary" is defined as, going beyond what is usual, regular, or customary. "Extraordinary Circumstances" is defined as, factors beyond a party's control that normal prudence and experience could not foresee,{**69 Misc 3d at 282} anticipate or provide for. And the term is defined in Black's Law Dictionary as out of the ordinary; exceeding the usual, average, or normal measure or degree. The legislature framed its discussion of extraordinary circumstances in terms of aggravating and mitigating factors that the court could consider. Among the aggravating factors that a 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 (NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 [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.; see also People v B.H., 63 Misc 3d 244, 248 [Sup Ct, Nassau County 2019]).

A further review of the legislative history found that 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 Criminal Court and the rest would go to Family Court (Assembly tr at 83-85 [emphasis added]).

Here, the People's burden is measured by a preponderance of the evidence. In the Pattern Jury Instructions, to establish a fact by a preponderance of the evidence means to prove that something is more likely true than not true. In other words, a preponderance of the evidence in the case means such evidence when considered and compared with that opposed to it, has more convincing force, and produces in your minds a belief that what is sought to be proved is more likely true than not true.

To support their argument that extraordinary circumstances exist in the current matter, the People cite to People v A.G. (62 Misc 3d 1210[A], 2018 NY Slip Op 51963[U] [Sup Ct, Queens{**69 Misc 3d at 283} County 2018]). There, the AO, while having been adjudicated as a juvenile delinquent and placed on 18 months of probation through Family Court in May 2018, was subsequently charged with multiple felony and misdemeanor counts arising out of incidents in June, September, and October of 2018. There, although some of the charges were presumptively removable not all were. As a result, the court found that if some of the matters were removed, while others remained, "[t]his could lead to the likelihood of different and/or duplicative judicial processes and outcomes, which would not be in the interest of justice for the community or the defendant." (See People v A.G., 62 Misc 3d 1210[A], 2018 NY Slip Op 51963[U], *2 [Sup Ct, Queens County 2018].) The court went on to conclude that as the AO's new offenses were committed while out on Family Court probation, this constituted an "extraordinary circumstance" and thus removal to Family Court should be prevented. (Id.)

The defense argues that although the term "extraordinary circumstances" is not defined in CPL 722.23, a standard was nonetheless created, based on a review of the legislative history at the time the bill was being debated in the Assembly, that only those extremely rare and exceptional cases would remain in the Youth Part. The defense argues that the standard that the People would be required to meet was a high one, and transfer to Family Court should be denied only when highly unusual and heinous facts are proved and there is strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the Family Court. (Assembly tr at 39.) The defense avers that the People's motion opposing removal to Family Court fails to demonstrate that this case represents the kind of extraordinary circumstances contemplated by the legislature.

The defense goes on to cite possible mitigating factors which would favor removal to Family Court. The defense states that the AO was born to an intact family with involved and caring parents and siblings. The AO's parents reported that he has learning disabilities, including deficit/hyperactivity disorder that has been diagnosed, but gone untreated. Also cited was the AO's latest ICM report which showed that he was successfully connected to a GED program, had a perfect curfew record, and was present for all home and office visits. The AO and his family were actively involved in the Families Rising program as well. And, when the AO was incarcerated, he received certificates for excellence in communication skills and achievement{**69 Misc 3d at 284} in math, science, and US history, to name a few. As such, it is the defense contention that other than this new arrest, nothing in the People's argument has shown that the AO is irredeemable and therefore not amenable to further services through Family Court. However, here the court must disagree. The AO was already under the auspices of Family Court when he was indicted for attempted murder in the second degree. The court then gave the AO another chance to prove himself by releasing him and he now stands before the court again charged with multiple violent felony counts. Here, although the AO is only 17 years old, he has a remarkable history of criminal, aggressive and wanton activity beginning at a young age and remaining fairly constant, with no indication that intervention or rehabilitative services have made any meaningful difference or [*4]impact. The AO's own actions to date have shown that he may not be amenable to the services available in Family Court.

Accordingly, this court finds that the People have met their burden that extraordinary circumstances exist such that removal would not be in the interest of justice.

The People's motion is granted and this matter shall remain in the Kings County Youth Part.