DECISION and ORDER This defendant is charged as an Adolescent Offender (“AO”) in the Youth Part of Westchester County with one count of criminal possession of a weapon in the second degree, a violation of section 265.03(03) of the Penal Law of the State of New York, by way of a felony complaint. This decision and order is issued pursuant to a motion made by the People to prevent the removal of the case to Family Court under section 722.23(1) of the Criminal Procedure Law (“CPL”).Factual AllegationsThe felony complaint alleges that on or about December 26, 2018, at approximately 1:51 a.m., while in the City of Yonkers, the defendant possessed a loaded.380 caliber Cobra Denali, in the front pocket of his sweatshirt. Additionally, it is alleged that the defendant fled from the police with they attempted to apprehend him and was observed discarding the firearm into a garbage can. Ultimately, the defendant was arrested and the police recovered the firearm from the garbage can.The defendant was arraigned on the felony complaint in the Youth Part on December 26, 2018. The matter was adjourned to December 31, 2018, for a review of the accusatory instrument pursuant CPL §722.23(2), wherein the court must determine whether or not the accusatory instrument includes an allegation that the defendant caused significant physical injury to a person other than a participant in the offense, the defendant displayed a firearm, shotgun, rifle or deadly weapon in furtherance of the offense, or the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact (CPL §722.23[2][c]). On December 31, 2018, the People conceded that none of the aforementioned factors was alleged in the felony complaint and requested an adjournment to January 17, 2019, for the People to determine if they would be filing a motion to prevent removal of the action to Family Court pursuant to CPL §722.23(1)(b). On January 25, 2019, thirty days after the date of the arraignment of the defendant, the People filed a motion to prevent the removal of the action to Family Court. On February 7, 2019, the defendant filed opposition papers to the People’s motion and a conference was held on the matter. At the conference, the People requested a hearing on the motion pursuant to CPL §722.23(1)(c). On February 14, 2019, the defendant filed a supplemental affirmation in opposition to the People’s motion with respect to the People’s request for a hearing. The People filed a supplemental affirmation in support of the motion on February 21, 2019.The People argue that “extraordinary circumstances” exist requiring the case to remain in the Youth Part. To establish extraordinary circumstances, the People allege that the AO is an “integral” member of the “Rollin 30 Crips” gang and although he has not been arrested for these offenses, is known to the Yonkers Police Department to have been in possession of a pistol in his waistband on or about August 14, 2018, when he also fled from the police, and, on or about November 1, 2018, along with a fellow gang member, attempted to attack a rival gang member with a machete. Based upon these allegations, the People contend that the AO has had “significant contact with the criminal justice system” and “has used and demonstrated his willingness to use all sorts of weapons — knives, machetes, and pistols to further his gang’s violent agenda” (Affirmation in Support, 10). Additionally, the People point out that there are aggravating circumstances of the AO’s offense that are not captured by the offense charged that warrant retention of the case in the Youth Part. Particularly, they argue that the AO’s decision to avoid apprehension “endangered himself, the police officers and the rest of the members of the public” and “could have resulted in a police officer discharging their weapons during the pursuit” (id). Finally, the People argue that the removal of this case to Family Court will have a negative impact upon the confidence of the public in the criminal justice system and the welfare of the community as a whole since, according to members of the Yonkers Police Department, the AO’s “use of violence at his young age is unparalleled in the City of Yonkers and has forged him a reputation in the community and within law enforcement” (id).The defendant’s opposition urges the court to deny the People’s application, pointing out that the People’s motion contains hearsay allegations that are not supported by sworn allegations of fact, as is required by the statute. Therefore, the motion must be denied. Furthermore, the defendant argues that the People’s request for a hearing should be denied since it was not made within thirty days of arraignment and was not indicated in the People’s motion papers.Conclusions of LawNew York’s “Raise the Age” legislation became effective on October 1, 2018, and was created to “raise the age of adult criminal responsibility from sixteen to eighteen so that youth who are charged with a crime may be treated in a more age appropriate manner” (New York State Assembly Memorandum In Support of Legislation, A3668A, 2018). The new legislation takes into account scientific evidence indicating that children’s brains are not fully developed until after the age of eighteen and that as a result, “youths who engage in criminal conduct often do not have the same level of understanding of their actions as an adult” (id). Additionally, the research shows that “the penalties and longer sentences often imposed by adult criminal courts do not reduce the recidivism rate of youth who commit crimes, compared to similarly situated youth who are adjudicated in a juvenile court system” (id). It is under this rationale, and within the guidelines of CPL §722.23, that the court must determine the within application.CPL §722.23(2)(a) requires that when an AO is accused of a violent crime, such as the one at bar, “the court shall schedule an appearance no later than six calendar days from [the] arraignment for the purpose of reviewing the accusatory instrument” (CPL §722.23[2][a]). The purpose of this review is to determine whether the district attorney has shown “by a preponderance of the evidence one or more of the following as set forth in the accusatory instrument: (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 §722.33[2][c][i][ii][iii]). In making such a determination, “the court shall review the accusatory instrument and any other relevant facts” and “[b]oth parties may be heard and submit information relevant to the determination” (CPL 722.23[b]). Where, as here, the action does not proceed under CPL §722.23(2), it shall proceed under CPL §722.23(1).CPL §722.23(1)(a) requires that the court order the removal of an action to family court following arraignment, “unless, within thirty calendar days of such arraignment, the district attorney makes a motion to prevent removal of the action” (CPL §722.23[1][a]). The motion must be made in writing and on notice to the defendant, who must be given the opportunity to reply. Finally, the court must deny the motion unless it finds that “extraordinary circumstances exist that should prevent the transfer of the action to family court” (CPL §722.23[1][d]).Before determining whether or not such extraordinary circumstances exist, the court must first determine whether or not the People are entitled to the hearing that they have requested. Although the statute allows either party to request a hearing on the factual allegations contained in the motion, the statute specifies that the motion filed by the People within thirty days of arraignment “shall indicate if the district attorney is requesting a hearing” (CPL §722.23[1][b]). Here, the People did not make their request for the hearing in their motion, and the request was not made within thirty days of the AO’s arraignment. Therefore, given the plain language of the statute and with no existing caselaw to the contrary, the court is constrained to follow the letter of the law and deny the People’s request for a hearing.Next, the court must consider whether or not the People have established that extraordinary circumstances exist warranting retention of this matter in the Youth Part, and have done so with “allegations of sworn fact based upon personal knowledge of the affiant” (CPL §722.23[1][b]). The term “extraordinary circumstances” is undefined and as such, the court is left to construe that language based upon its own discretion and experience, as well as the statute’s legislative intent. As an initial matter, the court notes that the presumption of the newly enacted legislation is that when an adolescent offender is charged with a violent felony that does not contain one of the three aggravating factors contained in CPL §722.23(2)(c), the case will be removed to family court, an indication that it was intended for only the most exceptional cases to remain in the Youth Part. Indeed, the Legislature specifically contemplated that extraordinary circumstances would be a “very high bar” and that cases falling into this category would be so rare as to be described as “one in a thousand” (see, New York State Assembly Record of Proceeding, April 8, 2017, pp. 83 & 85).Regardless of whether or not the court finds that the case at bar is one contemplated by the Legislature to remain in the Youth Part, many, if not all, of the factual allegations relied upon by the People in support of their motion are based upon conversations with and observations of other members of law enforcement. Therefore, the court finds that the People have not met their burden required by CPL §722.23(1)(b) in establishing extraordinary circumstances based upon the personal knowledge of the affiant. Thus, while this court decidedly acknowledges the violent nature of this crime and the potential impact of the defendant’s alleged conduct on the community as a whole, it is bound by the language of the statute and finds that the People’s motion to retain the matter in the Youth Part must be denied.Therefore, in accordance with this decision and order, the People’s motion is denied in its entirety and it is ordered that the matter is removed to Family Court.This constitutes the opinion, decision, and order of this Court.Dated: February 27, 2019White Plains, New York
