ADDITIONAL CASES The People of the State of New York, Plaintiff v. A.L., Defendant DECISION AND ORDER The defendant has moved, pursuant to CPL §722.23(4), to have this Court approve a waiver of his opportunity for removal of the two above matters to Family Court. Defendant’s motion would specifically waive his right for this Court to determine the pending motion brought by the People pursuant to CPL §722.23(1) to prevent the removal of the cases to Family Court based upon a finding of extraordinary circumstances sufficient to prevent the removal of each of the above two matters. The motion to waive the “extraordinary circumstances” determination was requested orally by the defendant and was thereafter scheduled by the Court for argument on September 10, 2019. The People were notified of the nature of the oral motion and the September 10, 2019 Court date. A hearing, limited solely to the waiver issue, was held on September 10, 2019. In addition to respective counsel, the defendant was present as was his mother and grandmother. At the conclusion of the hearing, the Court determined not to “approve” the defendant’s waiver of his “opportunity for removal in accordance with [this] section” [CPL §722.23(4)]. The Court’s decision was made on the record, after review and consideration of the statements made in Court and the Court’s review of applicable law. This written decision reiterates, and expands upon, the Court’s decision not to approve the defendant’s waiver. DECISION AND ORDER The defendant, A.L. (d.o.b. 11/02/2002) is charged, under FYC-70150-19/001 (DR NO.: 19-365454) with Robbery in the Third Degree in violation of Penal Law §160.05 regarding an incident that is alleged to have occurred on July 11, 2019 at 4722 Onondaga Boulevard, Syracuse, New York. He was subsequently charged by Indictment dated August 16, 2019 with Robbery in the Third Degree. The defendant is also charged, under FYC-70154-19/001, (DR NO.: 19-399826) with Escape in the First Degree in violation of Penal Law §205.15(1) regarding an incident that is alleged to have occurred on August 5, 2019 at 4949 Velasco Road, Town of Onondaga, New York after he is said to have escaped detention from the Hillbrook Detention Center. PROCEDURAL HISTORY 1. The defendant was arrested and taken into custody in Syracuse, on the “Robbery case” on July 29, 2019 at 7:30 p.m., by the Syracuse City Police Department. 2. The defendant was arraigned on July 29, 2019 by an Accessible Magistrate and thereafter brought before me in Youth Part on July 30, 2019 at 2:00 p.m. Defendant entered a plea of “Not Guilty” at both appearances and bail was set at $5,000.00 cash or bond by the Accessible Magistrate and continued by this Court. The Preliminary Examination was scheduled for August 2, 2019 at 11:00 a.m. and the defendant was remanded to custody. 3. On August 2, 2019 the People informed the Court and defendant that the Robbery case had been presented to a Grand Jury and the Grand Jury had voted to indict the defendant. The People also informed the Court that the Indictment would be reported out with an arraignment scheduled for a future date. The Court remanded the defendant and continued the bail previously set. At the court appearance on August 2, 2019 the Court also advised counsel that Robbery in the Third Degree People is not a Violent Felony Offense. The People then advised the Court, that they would be filing a written motion, pursuant to CPL §722.23(1), asserting extraordinary circumstances were present and sufficient to prevent removal of the Robbery case to Family Court. The motion date was scheduled for oral argument on August 27, 2019. 4. On August 5, 2019 the defendant was arrested in Syracuse, and taken into custody on the “”Escape case” referenced above, by the Onondaga County Sheriffs Department. 5. The defendant was arraigned on August 5, 2019 by an Accessible Magistrate and thereafter brought before me in Youth Part on August 6, 2019 at 2:00 p.m. Defendant entered a plea of “Not Guilty” at both appearances and bail was set at $5,000.00 cash or bond by the Accessible Magistrate. The robbery case was also scheduled for August 6, 2019 to allow the Court and counsel to coordinate the, now pending, two matters. After the defendant entered his plea of “Not Guilty” on the Escape case both cases were adjourned to August 27, 2019. The People indicated they would submit a motion on the Escape case to prevent its removal as well. The Court then set bail at $5,000.00 cash or bond, covering both matters, and the defendant’s remand to custody was continued. 6. The People’s written motion to prevent the removal of both cases and the defendant’s written response were served in a timely fashion. On August 27, 2019 oral argument of the motion commenced. At the conclusion of oral argument, with the Court’s approval, and without objection by the People, the case was adjourned to September 30, 2019 to permit the defense to provide a “mitigation report” to supplement the information already provided to the Court. 7. The previously referenced indictment on the robbery case was reported out, and the arraignment of the defendant on the indictment charging the defendant with Robbery in the Third Degree was before me, on August 27, 2019. Defendant’s bail status and remand were continued. 8. Subsequent to the August 27, 2019, as set forth above, the defendant requested Court approval to waive a determination on the issue of extraordinary circumstances. 9. On September 10, 2019, the motion for waiver was heard and decided by the Court. The waiver, as previously noted, was denied. 10. On September 17, 2019 bail was posted and the defendant was released from custody. APPLICABLE LAW CPL §722.23(4) states, “A defendant may waive review of the accusatory instrument by the court and the opportunity for removal in accordance with this section, provided that such waiver is made by the defendant knowingly, voluntarily and in open court, in the presence of and with the approval of his or her counsel and the court… “. A.L.’s motion pursuant to CPL §722.23(4) to waive his right to an extraordinary circumstances determination, made before the Court rules on the pending motion brought by the People to prevent removal of his charges to Family Court comes before this Court as a case of first impression. In determining defendant’s motion, the Court will consider the Legislative intent regarding the addition CPL §722.23(4) to CPL Article 722. In addition, the Court will utilize existing caselaw, pertaining to a defendant’s waiver of his or her right to appeal, when entering a plea of guilty to a crime as part of an overall “plea bargain” (agreement). The Legislature’s discussion of the waiver under CPL §722.23(4) is extremely informative. Ms. Walker (a member of the State Legislature) asked the Chair of the Legislative Committee, if CPL §722.23(4) would best be served by a colloquy between the Court and the defendant, similar to that required in matters that have immigration implications, to assure the Court that the defendant fully understood the rights that the defendant was waiving. Mr. Lentol (Chairperson of the committee) replied, after placing on the record the specific language of CPL §722.23(4), that he agreed with such an approach, stating “But — but you’re absolutely right, it [the colloquy] should be part of that decision. And the court should make each — each person who is in the family court, because remember, this is a family court judge that is supposed to be in the criminal part. So we’re not only putting the section in, but (we’re) relying on their expertise to make sure that each youth before him or her will understand their rights under the section”. Ms. Walker responded, “…I would hope, or guess it would be my plea that the judicial institute, in their education of judges, do take this under consideration as it relates to something that can be the norm in the court system while they stand in jurisdiction of these young people”. See Assembly, Record of Proceeding, April 8, 2017, p. 99-100. A review of the caselaw, pertaining to waiver by a defendant of certain rights, is quite informative. As was held in People v. Lopez, 6 NY3d 248, 256 [2006], “A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily (see People v. Calvi, 89 NY2d 868, 871 [1996]. And though a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that a defendant’s understanding of the terms of a plea agreement is evident on the face of the record (People v. Callahan, 80 NY2d, 273, 280 [1992]). Moreover, the actual plea bargain (agreement), as in all agreements, must provide some benefit to the defendant and the People. When the defendant receives no discernible benefit to a waiver, it will be held invalid. As stated recently by the Fourth Department, “We agree with the defendant that her waiver was invalid inasmuch as she pleaded guilty to the sole count in the superior court information without receiving a sentencing commitment or any other consideration”, (People v. Gramza, 140 AD3d 1643, 1644 [4th Dept., 2106]; see also People v. Allen, 174 AD3d 1456 [4th Dept., 2019]. APPLICATON OF THE LAW TO THE FACTS OF THIS CASE At the “waiver hearing” defense counsel, Mr. Belletier, placed on the record, his understanding of the plea bargain. Defendant was to plead to the Robbery Third Degree charge which is the sole charge under the indictment. That would satisfy the pending Escape charge and additionally the defendant would be granted Youthful Offender adjudication and receive a five year term of probation. At the hearing, the People confirmed that Mr. Belletier’s rendition of the plea bargain offer, was an accurate statement of the offer made by their office to the defendant. The Court conducted several, separate lengthy colloquys with the defendant. The defendant appeared to understand the mechanics of the plea bargain. The defendant’s remarks however, focused on probation and his belief that with adult probation he would never get in trouble again. When asked why adult probation was better, he explained his understanding was that adult probation would be “more strict for me, like it would help me do better”. Although he could understand the mechanics of the offer, he did not express any knowledge of the implications of a plea in the Youth Part and the ramifications of a Youthful Offender adjudication, adult probation, and what would happen if he were to violate probation and face adult incarceration. He did not realize that even if the waiver was approved by the Court, his release from custody was not guaranteed. He did speak with his mother and grandmother before asking Mr. Belletier to bring this motion. Moreover, he conferred at length on several occasions with Mr. Bellatier regarding his options and choices. Defense counsel is experienced and knowledgeable in both family court and criminal court. CPL §722.23(4) requires his approval regarding the defendant’s waiver. This may be asking defense counsel to perform an impossible task. In the instant matter, he has chosen to bring the motion, while at the same time expressing uncertainty about the plea bargain’s overall efficacy when applied to his own assessment of the defendant’s ability to fully understand and grasp the implications and expectations of the plea bargain. Mr. Belletier has navigated well, by presenting the defendant’s views in Court, without an outright endorsement. The Court will not approve the defendant’s waiver of his rights to a Court determination of the pending motion brought by the People pursuant to CPL §722.23(1) to prevent the removal of each of the above two matters to Family Court. The defendant’s insistence that adult probation would serve him better than Family Court probation1 has convinced the Court that his request for a waiver shows a lack of knowledge of the implications such a waiver would entail. Understanding the mechanics but not the full meaning and implications of such a waiver, has convinced the Court that his waiver would not be made knowingly or intelligently. Additionally, neither the defense nor the People, could express a legal benefit, under the specific facts of this case, to defendant, were he permitted to waive a determination of extraordinary circumstances. The Court stated in its oral decision that the plea bargain offer, might be acceptable to a Court after a determination of extraordinary circumstances is made. If the cases are not removed and remain in Youth Part a negotiated plea and sentence could be appropriate. But prior to such a determination the Court simply cannot find a legal benefit for the defendant to waive his rights. Where is the consideration?; what does the defendant gain by taking the offer at this time? As I said in open court, “At this — at this stage in the process…it’s not a bargain. It’s like — it’s like giving pearls — not pearls, but beads, to purchase Manhattan. That’s the kind of bargain he’s making under the Court’s view”. The Court will not approve the motion by the defendant to waive a determination of the motion brought by the People to prevent removal. The defendant’s motion is therefore denied. Both matters are now scheduled for October 28, 2019 at 2:00 p.m. for the continuation, completion and determination of the People’s motion to prevent removal of both cases to Family Court .2 Dated: October 4, 2019
