County Court, Nassau County, November 2, 2020

Madeline Singas, District Attorney (Kelsey Lorer of counsel), for plaintiff.

Howard R. Teichner for adolescent offender.

The adolescent offender (AO), R.U. (DOB x/xx/xxxx), is charged with three counts of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]); one count of criminal use of a firearm in the first degree (Penal Law § 265.09 [1] [a]); one count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]); and one count of reckless endangerment in the first degree (Penal Law § 120.25). The People have filed a motion pursuant to CPL 722.23 (1) (b), opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances." (CPL 722.23 [1] [d].) The AO has filed an opposition to the People's motion and the People have filed reply papers in further support thereof. The People's motion opposing removal is determined as follows:

The charges filed against the AO arise from an incident alleged to have occurred on August 30, 2020, at about 1:15 a.m., in H. N., Nassau County, New York. It is alleged that on that date and at that time, the AO, while acting in concert with another AO (hereinafter, AO S.) and with multiple adult codefendants, responded to the subject location with the purpose of killing three victims (i.e., victim 1, victim 2 and victim 3). It is further alleged that, inter alia, while at that subject location, an altercation took place, and a codefendant fired three rounds from a handgun in the general direction of the three victims.

The AO was arrested in connection with these charges on September 7, 2020. She was arraigned in the Youth Part of the County Court on September 8, 2020, and the matter was scheduled for a statutory sixth day appearance, to take place on September 14, 2020. At that appearance, the People waived the statutory sixth day appearance and acknowledged that they could not meet their burden of establishing the existence of at least one of three statutory aggravating factors^[FN1] which would warrant retaining the case in the Youth Part. The parties{**70 Misc 3d at 542} agreed and consented to the court basing its determination of whether to remove the case to the Family Court on the People's filing of a motion opposing removal pursuant to CPL 722.23 (1) (b).

The People's motion opposing removal consists of the sworn affirmation of Assistant District Attorney Kelsey Lorer, Esq., with accompanying memorandum of law and supporting exhibits appended thereto. The People argue that this AO's case should be retained in the Youth Part because the AO is charged with attempted murder in the second degree, a class B violent felony, and legislators intended that such crimes involving "the most serious felony conduct" should remain in the Youth Part. (Mem of law in support of mot, dated Sept. 28, 2020 [People's mem of law in support], at 3.)

The People further argue that extraordinary circumstances exist as to this AO. First, they argue that she was a "ringleader" in this incident; that she and AO S. were the orchestrators of the shooting, in that it was their issue with the complainant^[FN2] which led to the incident occurring in the first place. (People's mem of law in support at 4.) They allege that AO S. and the complainant had been arguing via text message in the hours leading up to the incident and that, after AO S. sent the complainant threatening text messages, this AO and AO S. showed up at the complainant's house with a group of people, at least one of whom was carrying a weapon. (People's mem of law in support at 4.) They contend that when the complaining witness's mother asked the AO why she was there, the AO responded that "your son called me a whore. That's why my boyfriend is here." (People's mem of law in support at 4.)

The People also argue that the AO "acted in 'an especially cruel and heinous manner' " when she, together with AO S., solicited and directed the attack against the complaining witness.{**70 Misc 3d at 543} (People's mem of law in support at 6.) They argue that the AO knew that someone in the BMW was armed and proceeded with traveling to the complainant's house and antagonizing the complainant's mother instead of trying to minimize or de-escalate the situation. (People's mem of law in support at 6.) Finally, they argue that there are no mitigating circumstances to be considered by the court.

Defense counsel argues in opposition to the People's extraordinary circumstances motion that when determining whether "extraordinary circumstances" exist which might warrant retaining a case in the Youth Part, the judge must look at all of the circumstances of the young person, including both aggravating and mitigating circumstances. (Affirmation of Howard R. Teichner, Esq., dated Oct. 5, 2020 [Teichner affirmation in opp], ¶ 18.) Defense counsel argues that there are no aggravating factors in this case to support finding that "extraordinary circumstances" exist. (Teichner affirmation in opp ¶ 22.)

Defense counsel further argues that in order to prevent removal the People must prove that the circumstances in this case are "so exceptional and beyond what is usual" to overcome the presumption that "only one out of 1,000 cases, those extremely rare and exceptional cases," would remain in the Youth Part and not be removed to the Family Court. (Teichner affirmation in opp ¶ 16.) Counsel for the AO argues that the facts of this case "do not meet, let alone cross that threshold." (Teichner affirmation in opp ¶ 22.)

The AO's counsel disputes the characterization of the AO as a "ringleader," arguing that the allegations attributable to her are minimal compared to those attributable to her co-actors. (Teichner affirmation in opp ¶ 23.) The AO's counsel argues that it was not alleged that the AO was in actual possession of a weapon and that, at the time that shots were fired outside by someone else, this AO was inside the complainant's house, at the request of the complainant's family. (Teichner affirmation in opp ¶ 23.)

Counsel for the AO also asserts that the complainant himself engaged in acts constituting threats and criminal acts. (Teichner affirmation in opp ¶ 23.) Counsel contends that this AO did not "share a community of purpose" in the shooting and that, based on "the lack of criminal conduct alleged to have been committed by [the AO]," this case "should most definitely" be removed to the Family Court. (Teichner affirmation in opp ¶ 24.) Finally, the AO's counsel argues that the AO does not have{**70 Misc 3d at 544} any criminal convictions, youthful offender adjudications or Family Court findings. (Teichner affirmation in opp ¶ 23.)

The People argue in their reply papers that the AO shared a community of purpose in the shooting, based on her statement to the complainant's mother that "she knew the reason why all of them were there and it was because her 'son called [the AO] a whore.' " (Reply to defendant's affirmation in opp to the People's mot by Kelsey Lorer, Esq., dated Oct. 16, 2020 [Lorer reply affirmation], ¶ 1.) The People further argue that this AO was a "ringleader" of the attacks on the victims because the entire incident occurred as retaliation for the complainant insulting this AO. (Lorer reply affirmation ¶ 2.)

According to the felony complaint, on or about August 30 at about 1:15 a.m., at an address in H. N., Nassau County, New York, this AO while acting in concert with AO S. and with multiple adult codefendants, responded to the subject address with the purpose of killing "victims 1, 2 and 3." It is further alleged that an altercation took place while at that subject location, and a codefendant fired three rounds from a black .40 caliber handgun in the general direction of the victims. It is alleged that AO S. sent threatening text messages to the complainant, in which he stated

"U don't wanna get intune. I have big niggas. U don't know what you just got your sled in to. Ur gonna fear me the most nigga if ur not dead . . . I warned u, I'm ready to sho u . . . Nigga when I see u your dead . . . Just bring ur vest pussy Nigha. I'm gonna kill u [sic]."

Victim 2 (the complainant's mother) allegedly identified this AO at the scene, and when victim 2 asked the AO why AO S. was there to fight her son, this AO stated "[b]ecause your son called me a whore, that's why my boyfriend is here." Victim 1 allegedly observed a codefendant "sit on a door on the passenger side of the vehicle," fire one round from a black .40 caliber handgun, and fire two more rounds in the direction of where victims 1, 2 and 3 were standing. Crime scene detectives allegedly recovered three .40 caliber pistol casings, consistent with the type of ammunition fired from a .40 caliber handgun. Law enforcement allegedly determined that one of the projectiles fired from the handgun struck a tree in front of the residence of victims 1, 2 and 3 and which was directly in front of where all three victims were standing.{**70 Misc 3d at 545}

It is alleged in the People's motion papers that the individuals who traveled in the BMW to [*3]the complainant's house on August 30, 2020, were this AO, AO S., two female codefendants, one male codefendant, and one individual yet to be arrested. (Affirmation of Kelsey Lorer, Esq., in support of extraordinary circumstances mot, dated Sept. 28, 2020 [Lorer affirmation in support], ¶ 1.) It is further alleged that, earlier in the night of August 29, 2020, this AO and AO S., along with the other individuals in the BMW, placed a FaceTime video call to the complainant, in which the individuals in the car, specifically AO S., were threatening the complainant. (Lorer affirmation in support ¶ 3.) The complainant allegedly observed at least one of the individuals in the car hold bullets up to the camera. (Lorer affirmation in support ¶ 3.)

It is further alleged that when the BMW arrived to the complainant's home in the wee hours of the morning, the complainant approached the vehicle and engaged in a verbal argument with several of the individuals in the car, in which they accused the complainant of previously calling AO U. a "whore." (Lorer affirmation in support ¶ 5.) A physical altercation then ensued, which involved, inter alia, the codefendant driver of the vehicle exiting the BMW and striking the complainant with a closed fist. (Lorer affirmation in support ¶ 5.)

The complainant allegedly then retrieved a tan BB gun from inside his family's house, went back outside with the BB gun and displayed it to the individuals in the car, then fired the BB gun several times into the air in their direction and in the direction of the BMW, then threw the BB gun into a garbage can beside the house. (Lorer affirmation in support ¶ 6.) Around the same time, the complainant's father, his mother, and his sister all exited their house. (Lorer affirmation in support ¶ 7.)

It is further alleged that this AO is known to the complainant's mother through family friends and that, upon seeing the AO outside, the complainant's mother approached her and asked her what was happening. (Lorer affirmation in support ¶ 8.) It is further alleged that the AO stated to the complainant's mother that they were there because her son had called the AO a "whore." (Lorer affirmation in support ¶ 8.) AO S. then allegedly stated to the complainant's mother that the individuals in the car were "not Long Island kids. [They were] from Brooklyn. [They] mean business." (Lorer affirmation in support ¶ 9.)

A codefendant then allegedly approached the complainant's mother, and after she stated that the complainant is her son,{**70 Misc 3d at 546} the codefendant allegedly responded, "watch me shoot your son in front of your eyes," and then reached into his hoodie pocket, pulled out what appeared to be a black handgun, and racked the slide. (Lorer affirmation in support ¶ 10.) The complainant's mother then allegedly pulled the AO off to the side and called her mother, and then called the police. (Lorer affirmation in support ¶ 10.)

The People's motion papers include the three victims' supporting depositions. The complainant's sister attested that the physical altercation between the codefendants and the victims included one of the female codefendants grabbing the complainant's father by the shirt and telling him "I'm going to hurt your son. He called my friend a whore." (Lorer affirmation in support, exhibit 1.) The mother attested in her supporting deposition that the codefendants allegedly threw rocks at the complainant and one female codefendant attacked the complainant. (Lorer affirmation in support, exhibit 1.) It is further alleged in the mother's supporting deposition that one of the codefendants told her "[t]hat is your son? He is going to get it today." (Lorer affirmation in support, exhibit 1.)

The People's motion papers also include a copy of an alleged text message conversation between AO S. and the complainant. While the court experienced considerable difficulty in deciphering the conversation (due to the relatively poor quality of the copy), it was able to discern that the text conversation included statements from AO S. threatening violence against the complainant, even to the point of threatening to kill him. (Lorer affirmation in support, exhibit 4.)

The complainant, in turn, appears to have urged AO S. to come to his home and appears to [*4]have used equally derogatory and inflammatory language against AO S. In fact, the complainant likewise appears to have threatened AO S. with violence and threatened to kill him. (Lorer affirmation in support, exhibit 4.)

Defense counsel's opposition papers include the unchallenged assertion that not only was this AO inside of the complainant's house at the time that shots were fired outside, but also that the complainant's family expressly consented to and requested that she be there. (Teichner affirmation in opp ¶ 23.)

Under CPL 722.23 (1) (d), the court must deny the People's motion to prevent removal "unless the court makes a determination {**70 Misc 3d at 547}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. However, using the statutory text as "the starting point" to "ascertain and give effect to the intention of the Legislature,"^[FN3] the court finds that the "plain meaning" of the phrase "extraordinary circumstances" is a set of facts that are "exceptional" and "highly unusual" and which indicate that the case should not be removed to the Family Court.^[FN4]

The court finds further guidance on the legislative intent from the legislative history of the Raise the Age (RTA) legislation (L 2017, ch 59, § 1, part WWW). (People v Roberts, 31 NY3d at 423; see also People v Andujar, 30 NY3d at 166.) The parties acknowledge in their respective motion paper submissions that the legislators who worked on the RTA bill intended for all cases, outside of those involving the most serious felony conduct, to be presumptively transferred from the Youth Part to the Family Court. (NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 [Assembly tr] at 39; Lorer affirmation in support at 2; Teichner affirmation in opp ¶ 14.)

Further examination of the legislative history reveals that legislators intended the "extraordinary circumstances" standard "to be determined and shaped by a judge's ruling after the enactment and effectiveness of [the Raise the Age legislation]"; and that the standard "should take into consideration all the circumstances, including the mental capacity of the offending child." (Assembly tr at 83.) Recognizing that "every case is going to be different," legislators directed that every case would be "looked at by the judge individually, to determine what kind of factors—both aggravating and mitigating—there are in the case, to determine whether or not" the particular case "passes the exceptional circumstances test." (Assembly tr at 83-84.)

Consistent therewith, legislators directed that "[e]very case must be judged on its own merits," taking into consideration {**70 Misc 3d at 548}certain "guideposts" such as whether the crime was committed in a "cruel and heinous manner," and/or whether "the defendant was a ring leader." (Assembly tr at 85.) The legislators predicted that the cases would be "rare" where the court would find "extraordinary circumstances" which warrant keeping a case in the Youth Part. (Assembly tr at 85.)

In this case, mindful of the legislative directives discussed above, and after considering the arguments raised by both parties in their motion papers and reviewing and evaluating their respective supporting exhibits, the court finds that "extraordinary circumstances" exist which warrant keeping this AO's case in the Youth Part.

First, the court notes that the AO has been charged with attempted murder in the second degree, a highly serious, violent felony offense, and has also been charged with multiple firearm-related offenses. The court finds that the serious and violent allegations supporting those charges, particularly the allegations that she and AO S. orchestrated the entire incident, the allegations concerning her codefendants physically assaulting the victims, and allegations that one codefendant fired a gun multiple times in the wee hours of the morning, close to where the victims were located outside of the victims' home, favor retaining the case in the Youth Part.

Moreover, the People have persuasively argued that the impetus for the incident was the AO and her boyfriend's desire to retaliate against the complainant for verbally insulting the AO. While this AO may not have necessarily "coerced" or "threatened" any other youths to participate in the subject incident, the court nevertheless finds an additional aggravating factor based on her role in setting up the entire incident. It is clear, based on this court's review of the felony complaint and the parties' respective motion papers, that in retribution for being verbally called a name, this AO undertook at least a "ringleader-type" role, such that, if not for this AO (and/or AO S. on her behalf) soliciting their participation, the other defendants would not have come to the victims' home at 1:15 a.m. and engaged in a physical altercation with the complainant and his family, and which culminated in one codefendant firing a gun in the direction of the victims.

Evidence of the AO's "ringleader-type" role includes, inter alia, her statement to the complainant's mother explaining that they had come to the victims' house because the complainant "called [her] a whore." (People's mem of law in support at {**70 Misc 3d at 549}4.) Additionally, the witness testimony indicates, inter alia, that one of the female codefendants allegedly grabbed the complainant's father by the shirt and told him that she would hurt his son because "[h]e called my friend a whore." (Lorer affirmation in support, exhibit 1.)

The court further finds that the circumstances alleged in this case are "highly unusual" and rather "heinous." The incident that was initiated by the AO not only put the complainant at risk, but, moreover, her conduct caused substantial danger to the complainant's family members, who were utterly innocent and vulnerable throughout the entire altercation. The court does not find that the AO should benefit from the fact that the complainant's mother allegedly removed the AO from the altercation so that she was not with the other codefendants at the exact moment when gunshots were actually fired. (Teichner affirmation in opp ¶ 23.) Additionally, the court finds it highly relevant that the AO was allegedly present for an exchange between an adult codefendant and the complainant's mother in which the codefendant said "watch me shoot your son right in front of your eyes," without any indication that the AO attempted to de-escalate or defuse the situation.

The court finds it a mitigating factor that this AO was among the youngest in the group of offenders and finds a further mitigating factor in the fact that this AO apparently has no prior involvement in the criminal justice system. However, the court has been presented with no other mitigating factors concerning this specific AO; examples of such factors discussed by legislators include substandard housing or other socioeconomic difficulties, severe lack of a familial support system and/or other factors which could arguably weigh against retaining the [*6]case in the Youth Part.

Under the totality of the circumstances, the court finds, having balanced the aggravating and mitigating factors in this case (see e.g. People v B.H., 63 Misc 3d 244, 250 [Sup Ct, Nassau County 2019]), and considering the seriousness of the charges brought against this AO, that there are extraordinary circumstances which warrant keeping this AO's case in the Youth Part through disposition.

Accordingly, the People's motion opposing removal to the Family Court is granted and the AO's case will remain in the Youth Part for all future proceedings.

"(i) the defendant caused significant physical injury to a person other than a participant in the offense; or

"(ii) the defendant displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense; or

"(iii) 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." (CPL 722.23 [2] [c].)