DECISION AND ORDER The People brought a motion requesting the Court to find extraordinary circumstances are present and sufficient to prevent the removal of the case under FYC-70157-19/001 (DR # 19-259068) to Family Court. The defendant brought a motion, requesting the Court to remove the matter to Family Court, arguing that CPL §722.23 provided a 30-day “window” for the People to file a written motion to prevent removal, and that the People failed to submit their motion in a timely fashion, within that “window.” After proper review and consideration, the Court provides the following written decision and order regarding the case. This written decision reiterates the Court’s decision to remove this case to Family Court, as stated on the record on November 14, 2019. DECISION AND ORDER The defendant, S.B., (d.o.b. 11/02/2002) is charged under FYC-70157-19/001 (DR # 19-259068) with Robbery in the Second Degree, in violation of Penal Law §160.10(1) and Penal Law §160.10 (2)(b), regarding an incident that is alleged to have occurred on April 27, 2019 at 918 James Street, Syracuse, New York. PROCEDURAL CHRONOLOGICAL HISTORY1 A. COURT APPEARANCES 1. On August 14, 2019, the defendant was arrested and taken into custody. Later that evening he was arraigned on the charge by the Accessible Magistrate and remanded to detention, for appearance before me in the Youth Part on August 15, 2019. 2. On August 15, 2019, in the presence of his attorney, William Balduf, the defendant was arraigned before me in Youth Part and entered a plea of “Not Guilty.” The Preliminary Examination and six-day review were scheduled for August 21, 2019, and the defendant’s remand to detention was continued. Mr. Balduf advised the Court that the defendant appeared earlier on August 15, 2019, in Onondaga County Court, where he was arraigned and remanded to custody on a Violation of Probation (VOP) matter2. 3. On August; 21, 2019, the defendant waived his right to a Preliminary Examination. The Court and respective counsel agreed to an adjournment, without further action, to September 30, 2019 to monitor the VOP matter. The Court and respective counsel did not address, nor did the Court determine, the issues regarding the People’s burden to prove by a preponderance of the evidence that the defendant’s actions resulted in significant physical injury to the victim, or that the defendant himself displayed a firearm in furtherance of the crime, or that the defendant’s sexual misconduct was present, to prevent removal of the case to Family Court3 as required pursuant to CPL §722.23(2)(c) (i), (ii), and (iii). The defendant’s remand to detention continued. 4. On September 30, 2019, counsel for the defendant advised the Court that the VOP pending in the Onondaga County Court had been adjourned to October 8, 2019. As a result of the County Court adjournment, with the consent of the parties, this Court adjourned the matter to October 23, 2019. 5. On October 23, 2019, the Court was advised by defense counsel that on October 21, 2019, the defendant admitted to the VOP before Judge Doran in County Court, and was re-sentenced to an indeterminate term with a minimum of one year and a maximum of three years. A plea bargain offer by the People was placed on the record, before this Court, whereby the defendant could waive removal of the pending charges to Family Court and enter a plea in Youth Part to a charge of Robbery in the Second Degree. Additionally, the defendant would thereafter be sentenced in the Youth Part to a concurrent indeterminate sentence with a minimum of one year and a maximum of three years; however, the defendant would not be eligible for a Youthful Offender adjudication in the Youth Part. A colloquy between counsel and the Court, in the presence of the defendant, presented the various consequences should the defendant accept the offer and waive the possible removal of his case to Family Court. Defense counsel advised the Court that he had already discussed the waiver possibility with the defendant. Mr. Balduf initially advised the Court that the defendant’s intention was to accept the deal, although the specific robbery charge the defendant was to plead guilty to was not specified. The Court spoke directly with the defendant4 to gauge defendant’s understanding of the proposed plea bargain, and to ensure that the defendant would make a knowing and voluntary waiver of the Court’s determination to possibly remove his case to Family Court. The Court had not completed its conversation with the defendant when the defendant’s father stated his son would not accept any deal. Thereafter, the defendant chose not to waive a determination of the presence of any “aggravating factors” as set forth in CPL §722.23(2)(c)(i), (ii) and (iii) or to waive a determination of the presence of “extraordinary circumstances” as set forth in CPL §722.23(1)(d). The Court scheduled the “extraordinary circumstances” motion argument for November 14, 2019, requiring the People to submit the written motion by November 4, 2019 and the defense response to be submitted by November 12, 2019. Counsel advised the Court that they believed the Court had previously decided that none of the “aggravating factors” as set forth in CPL §722.23 (2)(c) (i), (ii) and (iii) were present in this matter. The record was unclear and, therefore, in order to make a proper record, the Court stated, “…I’m going to put it [the 'aggravating factors' determination] on for…[October] 28th for that six-day review…” B. INTERVENING MOTION 1. On October 28, 2019, the defendant filed a motion to remove the matter to Family Court, arguing that CPL §722.23(1) provided a 30-day “window” for the People to file a written motion to prevent removal, and that the People failed to submit their motion in a timely manner within that “window.” 2. On November 6, 2019, the People filed their motion to prevent removal of the matter to Family Court, arguing that “extraordinary circumstances” are present, sufficient to prevent the removal of the matter to Family Court. This submission did not respond to the issue of timeliness raised in the motion filed by the defendant on October 28, 2019. 3. On November 14, 2019, the People filed their Answering Affirmation in opposition to the defendant’s October 28, 2019 motion, asserting that any delay in the People’s filing of their motion regarding extraordinary circumstances was by consent or attributable to the defendant’s actions in pursuing an overall settlement of the County Court VOP matter and the matter pending in Youth Part. C. CONTINUATION OF CHRONOLOGICAL COURT APPEARANCES 1. On October 28, 2019, the Court repeated, for the record, its conclusion that “…I cannot conclude, by a preponderance of the evidence, that the defendant displayed the weapon.” The Court’s statement was preceded by the People’s acknowledgment that there was not, at this time, identification of the defendant as the individual pointing what appeared to be a firearm at the victim. 2. On November 14, 2019, the Court advised counsel it would “retrace our steps” to clarify the record. The Court heard argument from counsel on the pending motion by the People to prevent removal based upon extraordinary circumstances, and the motion by the defendant to dismiss the People’s motion as being untimely. No witnesses were called to testify on behalf of the People or the defendant. Counsel advised the Court that they would rely upon their respective motion papers and prior documentary submissions to the Court. Contained within the People’s submissions were a police report, affirmed under penalty of perjury, a forensic fingerprint analysis report and a written statement by the victim in the robbery case. Contained within the defendant’s submissions was a comprehensive mitigation report entitled “Client Specific Plan” on behalf of the defendant prepared by the Center for Community Alternatives5. At the conclusion of the hearing, the People and defense counsel were afforded an opportunity to present closing remarks and both counsel availed themselves of the opportunity. The Court then placed on the record its oral decision, advising counsel that in accordance with the statute, and the Court’s intent, a written decision incorporating and expanding upon the Court’s oral decision would be provided. First, the Court reiterated its prior conclusion that the People failed to prove by a preponderance of the evidence that the defendant’s actions in the alleged commission of the crimes resulted in significant physical injury to the victim, or, that the defendant himself, displayed of a firearm, or, that the requisite sexual misconduct was present, to prevent removal of the case to Family Court, pursuant to CPL §722.23(2)(c)(i), (ii) and (iii). Next, the Court denied the defendant’s motion moving to dismiss the People’s motion to prevent removal to Family Court, as being untimely, in violation of the 30-day requirement set forth in CPL §722.23(1). Last, the Court ruled upon the People’s motion to prevent removal of the matter to Family Court based upon the presence of sufficient extraordinary circumstances. The Court denied the People’s motion and orally placed upon the record specific findings of fact and conclusions of law in reaching its conclusion that extraordinary circumstances were not present, sufficient to prevent the transfer (removal) of the matter to Family Court. 1. LAW REGARDING AGGRAVATING FACTORS (THREE PRONGS) AND THE APPLICATION OF THE LAW TO THE FACTS OF THIS CASE “The Youth Part is required, within six days of the arraignment of an AO who is charged with a violent felony as defined in Penal Law §70.02, to review the accusatory instrument and any relevant facts to determine if a basis exists for retaining the matter in Youth Part or if absent sufficient proof of the presence of extraordinary circumstances, it should be removed to the Family Court (CPL §722.23 [2][a][b] and [c]). In undertaking this review, the Youth Part looks for the presence of any one of three factors in the accusatory instrument: (1) that the Adolescent Offender (defendant) caused significant physical injury to a person other than a participant in the offense; (2) that the Adolescent Offender (defendant) displayed a firearm, shotgun, rifle or deadly weapon as defined the Penal Law in furtherance of such offense; or (3) the Adolescent Offender (defendant) unlawfully engaged in sexual intercourse, oral sexual contact, anal sexual contact, or sexual contact (CPL §722.23[2][c][i], [ii] and [iii]). As part of the six-day review process, both the People and the defendant have the opportunity to be heard and present information relevant to the determination. The presence of any one of the three factors warranting retention of the matter in Youth Part must be proved by a preponderance of the evidence (CPL §722.23[2][b] and [c]) (see People v. B.H., 2018 NYLJ LEXIS 4343 County Court of New York, Nassau County, 2019). Respective counsel viewed a video recording of portions of the alleged commission of the robbery and advised the Court it could not be conclusively determined that the defendant could be seen as the person brandishing a firearm. The Court did not review the videotape recording; however, the Court did review other relevant reports and statements in reaching its conclusion not to prevent removal pursuant to CPL §722.23(2)(c)(i), (ii), and (iii). In his statement, the victim could not identify the defendant as the person who pointed what appeared to be a gun at him. No gun was recovered. The defendant’s fingerprints were found on the stolen and then discarded computer case, but that fact could only place the defendant at the scene of the robbery, and as a participant in the robbery, but not necessarily the individual who “displayed” what appeared to be a firearm. The Court could not find proof of the defendant “displaying” a firearm sufficient to prevent removal of the matter to Family Court, and accordingly could not prevent removal absent the presence of “extraordinary circumstances.” 2. LAW REGARDING EXTRAORDINARY CIRCUMSTANCES AND THE APPLICATON OF THE LAW TO THE FACTS OF THIS CASE A. TIMELINESS CPL §722.23(1)(a) mandates that the Court “…shall order the removal of the action to family court…unless, within thirty calendar days of such arraignment, the district attorney makes a motion to prevent removal of the action pursuant to this subdivision.” The motion clearly was filed more than thirty calendar days after defendant’s arraignment. However, the delay was by mutual agreement of counsel, in the presence of the defendant, to allow time for negotiations that would encompass resolution of the matter before this Court and the County Court’s pending Violation of Probation matter. At the Court appearance before me on November 14, 2019, the Court noted “…it is clear that you [the defense counsel] put that [thirty-day review] in abeyance to try to negotiate a global resolution for your client” and “…the delay of this issue doesn’t…has not harmed your client in any way…He was being held on the VOP.” Moreover, the Court notes the defendant was offered a plea bargain to waive this very determination of “extraordinary circumstances” and had to be provided time to discuss this option with counsel before rejecting the offer. Accordingly, the Court denied the defendant’s motion to dismiss the People’s motion to prevent removal. B. EXTRAORDINARY CIRCUMSTANCES CPL §722.23(1)(b) requires that, “A motion to prevent removal of an action in Youth Part shall be made in writing and upon prompt notice to the defendant. The motion shall contain allegations of sworn fact based upon personal knowledge of the affiant…” It is the People’s burden to bring the motion requesting the Court make a finding of extraordinary circumstances. Once that motion is brought before the Court, it is the Court that bears the burden of determining if extraordinary circumstances are present, and if those extraordinary circumstances are sufficient to prevent removal to Family Court. For purposes of the determination of the People’s motion to prevent removal based upon the existence of extraordinary circumstances the Court has to consider the People’s “factual assertions” in the light most favorable to their motion to prevent removal. CPL §722.23(1)(d) does not specifically define the term “extraordinary circumstances.” That section provides the Court with the discretion to grant the motion to prevent removal provided the Court finds “…that extraordinary circumstances exist that should prevent the removal of the action to Family Court.” Thus, not only must the Court find the existence of extraordinary circumstances, but the Court must also find that those extraordinary circumstances are sufficient to prevent the removal of the action to Family Court. This Court has reviewed the legislative history of the “Raise the Age” statute, and additionally this Court has access to the NYS Unified Court System RTA Decision Bank, which contains several decisions by other Youth Part judges throughout New York State. This Court is appreciative of those cases’ detailed analysis of the legislative history. Certainly, the legislative history, legislative discussions and the courts’ recent decisions provide insight. Nevertheless, the Legislature chose not to provide a specific definition of extraordinary circumstances, instead leaving that task to the courts. Family Court is civil in nature and FCA §301.1 mandates that “In any proceeding under this article, the Court shall consider the needs and best interests of the respondent as well as the needs and best interests of the community.” Contrast that with Penal Law §1.05(5), which provides that the Penal Law is intended “To provide for an appropriate public response to particular offenses, including consideration of the consequences of the offense for the victim, the victim’s family and the community”; and Penal Law §1.05(6), states that its purpose is “To insure the public safety by preventing the commission of offenses through the deterrent influences of the sentences authorized, the rehabilitation of those convicted, the promotion of their successful and productive reentry and reintegration into society, and their confinement when required in the interests of public protection.” It is axiomatic that all crimes have a negative impact on the public at large. The classification and delineation of all criminal acts into misdemeanors and felonies and the various degrees of those crimes is a result of the collaborative attempts by lawmakers and the courts to frame the criminal justice system. Raise the Age is an attempt to provide a new classification of Adolescent Offenders with an opportunity to have their cases removed from adult court to Family Court. This Court is the gatekeeper, and when this Court determines there are sufficient extraordinary circumstance sufficient to prevent removal, the defendant’s case will stay in the Youth Part. Where the Court concludes no extraordinary circumstances exist, the defendant’s case will be removed to Family Court. A finding of extraordinary circumstances, sufficient to prevent removal to Family Court, requires more than an analysis of what the Adolescent Offender is accused of doing. It requires a look at the Adolescent Offender’s actual input to the commission of the crime, and then factoring into the determination the defendant’s individualized (internal) makeup. In reaching the Court’s decision not to prevent removal of this matter to Family Court, the Court was presented with certain procedural concerns not present in earlier decisions of the Court, in the evaluation and determination of “extraordinary circumstances.” Specifically, during the pendency of this case in Youth Part, the defendant was also appearing in County Court on a separate Violation of Probation matter. When the defendant was 14, he was arrested and charged as a Juvenile Offender with Robbery in the Second Degree. He plead guilty in County Court to a Juvenile Offense and was afforded and adjudicated as a Youthful Offender. He was sentenced to five years of probation. His most recent Violation of Probation arrest occurred as a result of his arrest on the instant matter and the violation of other terms of his probation, including possession and/or smoking of marijuana. During the pendency of the instant matter in Youth Part, the defendant admitted to the violation of certain conditions of probation (not regarding the instant pending matter) and was re-sentenced in County Court to an indeterminate sentence of 1-3 years. Thus, regardless of this Court’s determination regarding removal, the defendant will be incarcerated within the NY State prison system (in an age appropriate facility and setting) in accordance with the re-sentence on the Violation of Probation. The Court notes that were the instant matter not removed, and the defendant was convicted in Youth Court to the pending charge of Robbery in the Second Degree, he would not be eligible for Youthful Offender treatment and would have exposure to a significant period of adult incarceration. Alternatively, the Court’s decision to remove the matter to Family Court does not result in the defendant being “placed” under the Family Court Act until completion of his County Court sentence of incarceration. These possible consequences were considered by the Court, could not be ignored and were given some weight in its deliberations. In support of the People’s contention that extraordinary circumstances were present, sufficient to prevent removal of the case to Family Court, the People’s affirmation notes the alleged crime occurred late at night when the defendant and an un-apprehended and un-identified co-defendant staked out a parking lot waiting for a subject to rob. Either the defendant or co-defendant was armed with a gun; stopped the victim; pointed the gun at the victim; and forcibly stole the victim’s laptop computer. The People contend these acts of the defendant show “a deliberate and thought-out crime,” not a spontaneous, impulsive act of a youth. The People further stated that “Defendant’s conduct and the particulars of his violation of probation demonstrates his repeated and blatant disregard for the laws of society and his failure to comply with terms and conditions of probation.” The Court has also given strong consideration to the other assertions contained in the People’s moving papers. Although the defendant did not submit any written opposition to the People’s motion, counsel raised during oral argument many of the factors, both legislatively and statutorily, that militate against denying removal. He also submitted the CCA mitigation report. It must be noted the CCA mitigation report is quite comprehensive, outlining the defendant’s personal history, which shows he is from a broken home, with a paternal history of incarceration; parental instability; and defendant’s witnessing his father being shot at close range. The report outlines the defendant’s efforts to overcome those obstacles through recent utilization of educational and employment opportunities. The Court also notes that several adults, to include staff members from Hillbrook and Peace, Inc., appeared at Court in support of the defendant, and they presented positive reports of defendant’s behavior before and after his detention in this matter. The Court engaged the defendant directly regarding his actions, outlining the negative impact upon the defendant and the victim. The Court told the defendant “Sometimes, (S.B.), you can engage in a conduct that you cannot get out of…You can’t fix it and you wind up locked up for a long time or dead, but in this instance, young man, this Court is of a mind that the legislature intended…for charges like what you’re charged, the Court should remove them. I’m not concluding extraordinary circumstances exist. I’m trying to give you a second chance.” Finally, the Court notes the removal of this case to Family Court does not end the defendant’s path through the overall criminal justice system. I do not know how S.B.’s path in Family Court will proceed after serving his sentence of incarceration for the Violation of Probation, but I do know Family Court will independently determine how to assist S.B. as he proceeds toward adulthood by offering various services, while at the same time considering the need, as the People have pointed out, to best protect the public and promote confidence in our system of justice. Accordingly, the defendant’s case is removed to Family Court. The sealing of the record is directed as required by statute. Dated: December 18, 2019
