The defendant (hereinafter "the A.O.") in this action is charged as an adolescent offender in the Youth Part of the County Court of Schenectady County. Specifically, on May 31, 2024, the A.O. was arraigned on felony complaints charging him with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) a class C felony and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02) a class D felony, both of which are "violent felonies" under Penal Law § 70.02.^[FN1]

At an appearance on July 1, 2024, the People made an oral motion pursuant to CPL 722.23 (1) seeking to prevent removal of the entire criminal action to family court based on the existence of extraordinary circumstances and submitted an affidavit and a written Memorandum of Law in support of their motion.^[FN2] The People essentially argue that CPL 722.23 (1) bars removal of the Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) charge to family court, unless the People were to consent. The People argue that the "rule against surplusage" supports an interpretation of the statute that would exempt a "felony listed" in CPL 1.20 (42)(1) and (2) from the remaining portions of the statute, and that an action wherein such a felony is charged (which is unidentified in their brief, but presumably referring to Criminal Possession of a Weapon in the Second Degree, with which the A.O. herein is charged) must remain in adult criminal court unless the People consent. The People also argue that constitutional "equal protection" concerns support their proposed interpretation of the statute. Specifically, the People argue that their proposed interpretation would ensure that a theoretical "juvenile offender" (again unidentified in their brief, but presumably referring to a person 14 or 15 years old charged with Criminal Possession of a Weapon in the Second Degree) would be treated identically to the instant A.O.

The People also implicitly argue that the narrow factual circumstances of this case, i.e. that the weapon in question was allegedly possessed in proximity to a school, and their interpretation of the statute, render it the type of case for which the People's consent is required before removal to family court.^[FN3] The People have submitted an affidavit with an attached map locating the scene of the alleged crime in proximity to a school, and have referred to the definition of a "juvenile offender" contained in CPL 1.20 (42), as well as recent case law, presumably to point out that, were the instant A.O. 14 or 15 years old (and not 17), and he possessed a weapon in the same manner, his case could only be transferred to family court with the People's consent. The People thus assert that such a theoretical scenario supports a statutory interpretation by which the instant 17 year old A.O. should be treated identically to a 14 or 15 year old similarly charged.

The defense opposes the motion by citing the legislative history which, according to the defense, evinces an intent to have most felony cases involving 16 and 17 year olds adjudicated in [*2]family court.^[FN4] Moreover, the defense argues that any perceived constitutional concerns that may exist with respect to the "juvenile offender" laws that affect 14 and 15 year olds should have no impact on the constitutionality of the instant statute.

"In interpreting a statute, it is fundamental that a court . . . should attempt to effectuate the intent of the Legislature," the clearest indicator of which is the statutory text (People v Boone, 41 NY3d 573, 581 [2024][internal citations and quotation marks omitted]). "Effect and meaning must, if possible, be given to the entire statute and every part and word thereof[, and] a statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent" (id. [internal citations, quotation marks and brackets omitted]). "Legislative history may also be considered as an aid to interpretation" (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 352 [2020]).

CPL 722.23 (1) (a) provides that "the court shall order the removal of the action to the family court" following the arraignment of a 16 or 17 year old defendant charged with a crime, but that automatic removal shall not occur with respect to:

1. any Class A felony (except for certain drug felonies defined at Penal Law article 220);

2. a violent felony defined in section 70.02 of the Penal Law, i.e. one of an array of serious crimes designated and grouped together (originally for the purpose of imposing specific sentencing consequences for those convicted of them) (hereinafter "violent felonies");

3. a felony listed in CPL 1.2 (42)(1) or (2), by which 13 to 15 year olds can be prosecuted as adults (hereinafter "juvenile offender felonies"); or

4. an offense set forth in the vehicle and traffic law (see CPL 722.23 [1][a]).

At issue before the Court are the second category, "violent felonies," and the third category, "juvenile offender felonies." The Raise the Age statute borrowed these definitions from other statutes in an effort to define further the types of crimes and factual circumstances which, when committed by 16 and 17 year olds, would either be retained in adult courts for prosecution or would be removed to family court. Many "juvenile offender felonies" found in CPL § 1.20 (42) are also designated as a "violent felonies" in Penal Law § 70.02, and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03), one of the crimes with which the instant A.O. is charged, is found in both groups of felonies (see Penal Law § 70.02 [1][b]; CPL 1.20 [42][2]). Nevertheless, the People appear to assert that such charge should be exempt from the operation of the remainder of the statute by which "violent felonies" are [*3]subjected to a three-part inquiry (at a hearing within 6 days of arraignment) before being retained in adult criminal court and that, instead, the People's discretion should govern where the instant matter is prosecuted.

Through their supporting affidavit identifying the location of the alleged crime, the People appear to assert more specifically that CPL 722.23 (1) requires the instant case to be treated distinctly from other "violent felonies" committed by 16 and 17 year olds because of this case's particular factual circumstances—i.e. that the weapon was allegedly possessed in close proximity to a school. Indeed, Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) is listed as a "juvenile offender felony" in CPL 1.20 (42)(2), but the latter statute further narrows the ability to prosecute a 14 or 15 year old as an adult for such a crime to "where such machine gun or such firearm is possessed on school grounds."^[FN5] Moreover, when a 14 or 15 year old is alleged to have possessed a firearm "on school grounds," the People's consent is required for the case to be removed to family court (see People v K.S., 212 NYS3d 521, 522-524 [Sup Ct, Richmond County 2024]). Extrapolating from the People's submissions in the instant case, they appear to be urging an interpretation of the Raise the Age statute by which the crime of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03), when committed by a 17 year old "on school grounds," should not be subjected to the remainder of the Raise the Age statute and instead should require the People's consent before being removed to Family Court.

A review of the statutory language of Penal Law § 265.03, and interpretive case law, indicates that the narrowing language in CPL 1.20 (42)(2) is not part of the definition of the crime itself, and therefore cannot be interpreted to separate "possessing a weapon on school grounds" from the operation of the Raise the Age statute. The statutory language "where such machine gun or such firearm is possessed on school grounds" (CPL 1.20 [42][2]) is neither an "element" nor an "exception" to the felony of Criminal Possession of a Weapon in the Second Degree (see People v Stokes, 42 Misc 3d 398, 400 [Sup Ct, Kings County 2013]). Rather, such language is a "proviso" that need not be pleaded nor proved by the prosecution at trial (see id.). This "proviso" is not part of the felony crime of Criminal Possession of a Weapon in the Second Degree, and no such separate felony of "criminal possession of a weapon on school grounds" exists in the Penal Law.^[FN6] Thus, the Court concludes that the reference in CPL 722.23 (1) to a "felony listed" in CPL 1.20 (42) refers only to the felony itself — in this case just Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) — and not the additional proviso ("possessed on school grounds"). As thus plainly defined, there is no dispute that the crime of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) charged herein is also a "violent felony" which would ordinarily be subjected to further inquiry, within 6 days of arraignment, as to presence of certain factors, such as whether the weapon were displayed in furtherance of the crime (see CPL 722.23[2][c][ii]), before being retained in adult criminal court.

Therefore, regardless of whether Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) is "listed" in CPL 1.20 (42)(2), both that charge and the other charge herein, Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02) are each "violent felonies" and thereby subject to the Raise the Age's statute's analytic process. As "violent felonies" fall within the ambit of the statute, neither of the charges necessarily require the People's consent for the instant case to go to family court. This construction is consistent with the manner in which almost every court in this state has interpreted CPL 722.23.

With respect to the People's assertion that the customary and generally accepted interpretation of CPL 722.23 (1) violates a rule of statutory construction against "surplusage," i.e. that it potentially rejects certain words of the statute as "meaningless or repugnant" (citing Matter of Gulbenkian, 9 NY2d 363, 370 [1961]), the People's proposed interpretation may present an identical or even greater peril. To interpret the statute as prohibiting a Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) charge from being removed to family court in all instances except with the People's consent, as is urged herein, would render meaningless CPL 722.23(2)'s treatment of "violent felonies" elsewhere in the statute. Moreover, to the extent that the People may specifically seek to separate the Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) charge from the rest of CPL 722.23's framework only when the weapon is "possessed on school grounds"—said interpretation is also inconsistent with the statutory language. As noted above, several of the listed "juvenile offender felonies" are also "violent felonies," and Criminal Possession of a Weapon in the Second Degree (as set forth in Penal Law § 265.03) specifically falls into both categories. Thus, CPL 722.23 (1)'s reference to CPL 1.20 (42)(1) and (2) cannot reasonably be interpreted to compel the result the People seek herein, both as a general matter and in this specific instance.^[FN7]

The foregoing interpretation is consistent with the general spirit and purpose of the law as set forth in its legislative history. The Raise the Age statute was intended to change the criminal justice system in New York, sending almost all felony crimes allegedly committed by 16 and 17 year olds to family court. In relevant part, the legislative history indicates that the legislature sought to retain only "truly violent" felonies for the adult system (Assembly Record, p. 21). The legislature thus began with the pre-existing broad definition of "violent felony" (which we know is set forth in Penal Law § 70.02), and it then endeavored to narrow further the types of cases that could remain in adult courts (Assembly Record, pp. 21-22). Specifically, the legislature intended to subject "violent felony" charges to a "test" to ascertain whether one of three factual circumstances were present (i.e. display of a deadly weapon, sexual conduct or significant injury to the victim) before characterizing 16 and 17 year olds who committed those crimes as "truly violent felons" whose cases should stay in adult criminal court (Assembly Record, pp. 21-28). While the crime of Criminal Possession of a Weapon in the Second Degree [*4](Penal Law § 265.03) was not expressly mentioned in the history, such crime is a "violent felony" (as defined in Penal Law § 70.02) which would clearly be within the statute's ambit. The legislative history reveals no intention to separate this particular felony crime, whether or not it was committed on school grounds, from the statute's purview (see Assembly Record). For these reasons, the spirit and purpose of the statute, as apparent from the legislative history, support the Court's interpretation as well.

Constitutional Arguments Affecting Statutory Interpretation

To the extent that the People raise a constitutional reason, and specifically an equal protection argument, for interpreting the Raise the Age statute in the way they suggest, in light of the Court's conclusions above, the Court need not opine as to the law's constitutionality as it relates to this A.O. because he is not aggrieved by the Court's interpretation of the statute. Having reviewed the instant adolescent offender's arguments favoring removal, it would appear that the instant 17 year old adolescent offender would substantially benefit from an interpretation that would send the matter to family court without relying on the People's consent. For that reason, the Court need not analyze whether a 15 year old charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) in a similar factual scenario (in which an apparently undisplayed weapon was allegedly possessed in proximity to a school), would similarly benefit.^[FN8] In other words, the Court need not look for a theoretical constitutional infirmity to support its interpretation of the statute in question.

After reviewing the facts and the applicable law, the Court concludes that the People have failed to establish the existence of "extraordinary circumstances" as required under CPL 722.23 (1) and, therefore, that no basis exists for retaining the matter in Youth Part.Accordingly, it is hereby

ADJUDGED that the People have failed to satisfy their burden pursuant to CPL 722.23 (1) to establish the existence of extraordinary circumstances to prevent removal of this criminal action to the Schenectady County Family Court; and it is therefore

ORDERED that the People's application to prevent removal of this criminal action to the Schenectady County Family Court based on the existence of extraordinary circumstances is DENIED; and it is further

ORDERED that the entire instant criminal action (FYC-70626-24/001) is hereby REMOVED to the Schenectady County Family Court.

This constitutes the Decision and Order of the Court.