The People having moved pursuant to Criminal Procedure Law, Article 722, §722.23(1), et seq. for an order preventing removal of this action to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion, dated March 1, 2019, Affirmation in Support of Motion to Prevent Removal by James Marra, Esq., dated March 1, 2019, on behalf of the People, Reply Affirmation and Memorandum of Law in Opposition of the Motion to Prevent Removal of Joseph Catalano, Esq., dated March 18, 2019, on behalf of J.W. (“Defendant”), in opposition to the motion, and oral argument having been held on March 28, 2019, and due deliberation having been had thereon, the Court finds the following:This action was commenced by way of a Felony Complaint (“Complaint”) which charged Defendant with Robbery in the First Degree, a Class B Felony, as defined by Penal Law §§160.15(3) and 20.00. The crime is alleged to have occurred on February 1, 2019.Defendant was born on November 6, 2002. She was brought before Youth Part because she was sixteen years old when the crime is alleged to have been committed. Thus, by law Defendant is considered an Adolescent Offender (hereinafter, “AO”).AO was arraigned on February 2, 2019. Following the arraignment, the Court determined the People failed to meet the requirements of CPL §722.23(2)(c). Thereafter, the Court ordered this action to proceed in accordance with CPL §722.23(1).The pertinent factual part of the Felony Complaint (“Complaint”) states “on information and belief”, the following:the defendant, along with co-defendants, while each being intentionally aided by or while aiding the other, while at Woodlawn and Purdy, did forcibly steal property, to wit: approximately $80.00 USD cash, in the course of the commission of the crime, the defendant, along with co-defendants did threaten immediate use of a dangerous instrument, to wit: a screwdriver, in that the defendant, along with co-defendants did place a screwdriver at the back of the complainant’s head, the cab driver, Frank Ramirez, as if it was a gun and did take without permission approximately $80.00 US dollars.On March 1, 2019, the People filed this motion pursuant to CPL §722.23(1)(b). The People elected to proceed on the motion in the form of oral argument. In support of its application, the People attached to the Marra Affidavit a copy of the Complaint and Supporting Deposition of Frank Ramirez.CPL §722.23(1)(b) mandates that every motion to prevent removal of an action to family court “contain allegations of sworn fact based upon personal knowledge of the affiant.” To this end, the People rely upon the aforesaid supporting deposition of the complainant, Frank Ramirez, which was subscribed, verified and sworn to under penalty of perjury on February 1, 2019. As such the contents therein falls within the mandate of CPL §722.23(1)(b).CPL §722.23(1)(d) provides that a motion to prevent removal shall be denied unless the district attorney establishes the existence of “extraordinary circumstances” to prevent removal. The Raise the Age legislation (“RTA”) does not specifically define ‘extraordinary circumstances.’ Thus, extraordinary circumstances must be determined on a case by case basis. We can conclude from its ordinary meaning that it refers to that which is very unusual or remarkable. The Court, in its discretion, should look for circumstances that go beyond what is regular in the normal course of events.We look first to the Complaint which served as the basis for commencement of this action and sets forth in detail the factual allegations of the crime charged. It was signed under penalty of perjury by the complainants. The factual part seems to support each element of the alleged offense. It appears to be sufficient on its face. While the Complaint seems to satisfy the requirements of CPL §722.23(1)(b), the Court does not find the alleged criminal behavior of AO as set forth therein in-itself to be ‘extraordinary circumstances’ to prevent removal of this action to family court.Since the factual part of the accusatory instrument alone does not rise to the level of extraordinary circumstances, the Court now considers additional factors argued by the People and whether in its totality they rise to the level of extraordinary circumstances to prevent removal. The factors the People rely on are: (1) AO was one of the two (2) main perpetrators of the robbery, (2) AO was suspect who put hard object to the back of his (complainant’s) head, and (3) AO refused to return the money. The People ask the Court to consider the foregoing circumstances in its totality when determining whether to find extraordinary circumstances. The Court finds these factors are neither very unusual, remarkable or go beyond that which is regular or foreseeable in the normal course of events. See. People v. T.R, 2018 NY Slip Op 51976.Defense Counsel waived the right for a testimonial hearing and consented to rely on the motion papers and oral argument. Counsel argues that removal is mandatory because the intent of RTA is to rehabilitate where children are “amenable” to services. Counsel claims the People failed to state that AO has an inability to benefit from rehabilitation which mandates removal and any decision to remove should be with this legislative intent in mind. Moreover, that the juvenile delinquency system in family court is designed with the intent and is more suited to accomplish the goal of adjudicating children like AO, not prosecuting them in a criminal court except in the most egregious cases. The question here, however, is whether the People have shown extraordinary circumstances to prevent removal. See CPL §722.23(1) (d). Counsel further argues that the Court must consider factors such as (1) whether the AO committed a series of crimes over a series of days, (2) whether the AO 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 youth into committing the crimes before the court. Counsel argues that since the facts in the Complaint do not itself rise to the level of extraordinary circumstances, then removal is mandatory.The intent of RTA and the legislative discussion of ‘extraordinary circumstances’ directs the Court to factors which should be considered in its determination. Here, AO is not charged with multiple felonies committed within weeks of one another. There are no specific allegations in the People’s papers as it relates to the crime being particularly cruel or heinous. The People previously argued that a co-AO was the “mastermind” (leader) of this offense. This argument is supported by the Supporting Deposition of Frank Ramirez, wherein he describes a co-AO as being the individual who first engaged him while driving down the street and as being the one who “egged on” AO.The Court agrees with Counsel’s interpretation of the legislative intent to remove children from criminal prosecution and to rehabilitate those who are amenable to services. Since arraignment AO has been amenable to services. On February 4, 2019, AO was released on own recognizance and ordered to comply with the directives of the Youth Part. AO has timely appeared in court for all further proceedings. AO has led a law-abiding life. AO has attended school as directed.Based upon the foregoing, the Court does not find ‘extraordinary circumstances’ exists to prevent removal of this action to family court. Hence, the People’s motion to prevent removal is denied and the matter shall remain in Erie County Youth Part.So, ordered.
