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 Lana Tupchik, Esq., dated March 11, 2019, on behalf of A.T. (“Defendant”), in opposition to the motion, and oral argument having been held on March 14, 2019, and due deliberation having been had thereon, the Court finds the following:This action was commenced by way of a Felony 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. It alleges the crime occurred on February 1, 2019.Defendant was born on May 23, 2002. He was brought before Youth Part because he 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 did not 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 copies of the Complaint, Supporting Deposition of Frank Ramirez and a Felony Complaint in which it is alleged that AO committed robbery on January 18, 2019 in violation of Penal Law §§160.10(2)(b) and 20.00. 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. First, AO was charged and arraigned in Youth Part on January 18, 2019, with robbery of a different cab driver with the use of a BB gun. AO was released on January 24, 2019, pursuant to Criminal Procedure Law §180.80. At that time AO was directed to lead a law-abiding life during release. Second, within a two-week period on February 1, 2019, AO was again arrested and charged with robbery of another cab driver. AO was arraigned on the second charge and ultimately released pursuant to CPL §180.80. During the arraignment on the second charge but prior to the §180.80 release, AO requested nominal bail be set on the first charge. The Court granted the request and imposed nominal bail. Third, on February 7, 2019, AO was released on own recognizance under the supervision of probation. Notice was given to AO to return to court for further proceedings which was scheduled for February 20, 2019. AO failed to return to court and bench warrants were issued. Fourth, on March 18, 2019, AO was arrested in connection with the bench warrants. AO was also charged with an additional crime of grand larceny in violation of PL §155.30(5) which is alleged to have occurred on or about January 4, 2019.The People ask the Court to consider the foregoing circumstances in its totality when determining whether to find extraordinary circumstances. They emphasized the three unrelated felony charges brought against AO for criminal acts that occurred on January 4, 2019, January 18, 2019 and February 1, 2019, which the People claim AO was the primary actor in all three crimes and argued that the foregoing circumstances collectively rise to a level of extraordinary circumstances as contemplated by RTA. Further, the Court must note that the January 18, 2019 felony charge against the AO remains pending in Youth Part pursuant to CPL §722.23 (2)(c)(ii).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. Counsel relies on Justice Norman St. George’s conclusion in People v. B.H., 2018 NY Slip Op 28403 [Nassau Co. Dec 11, 2018] that RTA presumes that AO cases will be removed to family court for adjudication except in certain circumstances. See CPL §722.23(2)(c). The question here, however, is whether the People have shown extraordinary circumstances to prevent removal. See CPL §722.23(1)(d). 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. 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. Here, AO is 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 do argue that AO was the mastermind (leader) of this offense. This argument is supported by the Supporting Deposition of Frank Ramirez, wherein he describes AO as being the individual who first engaged him while driving down the street and as being the one who “egged on” the other charged youth in this case.While 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, AO does not appear amenable to services but rather appears to thwart any efforts at rehabilitation. On January 24, 2019, AO was released from custody and directed to return to court at all scheduled proceedings and to lead a law-abiding life. AO was subsequently charged and released on own recognizance under the supervision of probation. As previously set forth in this decision, AO failed to comply with the conditions of release. AO failed to lead a law-abiding life. AO failed to report to the probation department. AO failed to appear in Court for subsequent proceedings. This is not the behavior of someone who is amenable to services. As a result of this alleged behavior, AO was arrested in order to secure his appearance in court.The Court further agrees with Justice Lenora Gerald in People v. A.G., 2018 NY Slip Op 51963(U) [Queens Co. Dec 20, 2018], to the extent it was determined that ‘extraordinary circumstances’ exists where the defendant had multiple separate pending cases before the court at one time. As set forth in the People’s moving papers, committing a violent felony offense while at liberty on another pending charge, and the subsequent failure to appear although provided notice to do so is remarkable. Additionally, the Court must consider the third felony charge filed against AO, albeit after the filing of this motion, since that charge was filed prior to the hearing.Based upon the foregoing, the Court finds ‘extraordinary circumstances’ exists to prevent removal of this action to family court. Hence, the People’s motion to prevent removal is granted and the matter shall remain in Erie County Youth Part.So, ordered.
