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 motion and the Answering Affidavit of Danielle N. D ‘Abate, Esq. (Assistant District Attorney), dated February 3, 2020, in support of the motion, the Reply Affirmation in Opposition of the Motion to Prevent Removal by Dean Puleo, Esq., dated February 19, 2020, on behalf of the defendant (“S.E.”), and oral argument having been held on February 20, 2020, and due deliberation having been had, the Court finds the following: This action was commenced by way of Felony Complaints that charged S.E. with Burglary in the First Degree, as defined by Penal Law §140.30(3), and Criminal Contempt in the First Degree, as defined by Penal Law §215.51(B)(i), Menacing in the Second Degree, as defined by Penal Law §120.14(1) and Grand Larceny, as defined by Penal Law §155.30(1). S.E. was subsequently indicted by the Grand Jury and charged with Burglary in the First Degree, as defined by Penal Law §140.30(3), Criminal Contempt in the First Degree, as defined by Penal Law §215.51(B)(i), and Criminal Contempt in the First Degree, as defined by Penal Law §215.51(B)(vi). S.E. was born on December 5, 2002. He was brought before Youth Part because he was seventeen years old when the alleged crimes were committed. Thus, by law Defendant is considered an Adolescent Offender (hereinafter, “AO”). See CPL §1.20(44). AO was arraigned on the Felony Complaints on January 4, 2020. A felony hearing was scheduled for January 10, 2020. AO waived his right to a felony hearing and the matter was held for action of the Grand Jury. Thereafter, on January 10, 2020, the Court determined the People could not meet the requirements of CPL §722.23(2)(c) and directed the People to proceed in accordance with CPL §722.23(1). On February 3, 2020, the People filed its motion pursuant to CPL §722.23(1)(b) to prevent removal to family court. Annexed to the People’s motion is an Answering Affidavit by Danielle N. D’Abate, Assistant District Attorney (the “Affidavit”). Attached to the Affidavit are copies of the Felony Complaints, Warrant of Arrest Juvenile Delinquency (executed by Hon. Brenda M. Freedman on December 23, 2019), Supporting Deposition of D.N., sworn to on January 30, 2020 (the complainant herein who is a minor and will be referred to by initials only), Buffalo Police Department Misdemeanor Information, Buffalo Police Department Police Report Harassment dated August 25, 2019, Buffalo Police Department Police Report Trespass dated August 27, 2019, Supporting Deposition of Jasmine Rivera, subscribed and verified on September 29, 2019, Buffalo Police Department Report Domestic dated September 9, 2019 (text message attachments), Supporting Deposition of Michelle Page, subscribed and verified on October 30, 2019, Certified Copy of a Temporary Order of Protection (executed by Hon. Mary G. Carney on September 9, 2019), Buffalo Police Department Police Report Domestic dated September 16, 2019, Buffalo Police Department Police Report Criminal Contempt dated September 19, 2019, Supporting Deposition of Luis Fuentes, subscribed and verified under penalty of perjury on September 29, 2019, Domestic Incident Reports dated September 21, 2019, Buffalo Police Department Police Report Domestic dated September 21, 2019, Buffalo Police Department Police Report Burglary dated September 22, 2019, Buffalo Police Department Police Report Burglary dated September 22, 2019, Order of Protection (executed by the Hon. Kevin M. Carter on January 6, 2020), a series of text messages spanning December 25, 2019 to December 27, 2019, and an Erie County Probation Department Youth Part Court Report dated November 6, 2019. The Grand Jury Indictment was filed in Youth Part on February 13, 2020. AO appeared before the Court for arraignment on the Indictment on February 20, 2020. Upon arraignment, the parties agreed to include the indicted charges in the People’s motion to prevent removal. For all intent and purposes, the Indictment replaced the Felony Complaints as the accusatory instrument. The People nevertheless included and relied on the content of the felony complaints, among other things, in support of its application to prevent removal to family court. Pursuant to CPL §722.23(1)(a), the court shall order removal of the action to family court unless the district attorney makes a motion to prevent same within thirty calendar days of arraignment. The People filed its motion timely. AO’s counsel responded. Neither party requested an evidentiary hearing. The parties agreed to proceed on the papers and oral argument. 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.” In this case the Affidavit and accusatory instruments, Buffalo Police Department Police Report Harassment dated August 25, 2019, Buffalo Police Department Police Report Trespass dated August 27, 2019, Buffalo Police Department Report Domestic dated September 9, 2019 (text message attachments), Buffalo Police Department Police Report Domestic dated September 16, 2019, Buffalo Police Department Report Criminal Contempt dated September 19, 2019, Domestic Incident Reports dated September 21, 2019, Buffalo Police Department Police Report Domestic dated September 21, 2019, Buffalo Police Department Police Report Burglary dated September 22, 2019, Buffalo Police Department Police Report Burglary dated September 22, text messages spanning December 25 to December 27, and Erie County Probation Department Youth Part Court Report dated November 6, 2019 all contain hearsay claims and/or do not contain allegations of “sworn fact” based upon personal knowledge. As such the contents therein do not fall within the mandate of CPL §722.23(1)(b). However, the People also rely upon the Warrant of Arrest Juvenile Delinquency by Hon. Brenda M. Freedman, Supporting Deposition of D.N., Supporting Deposition of Jasmine Rivera, Supporting Deposition of Michelle Page, a Certified Copy of a Temporary Order of Protection by Hon. Mary G. Carney, Supporting Deposition of Luis Fuentes, and Order of Protection by the Hon. Kevin M. Carter. The contents of these documents fall within the mandate of CPL §722.23(1)(b). CPL §722.23(1)(d) provides that a motion to prevent removal of an action to family court shall be denied unless the district attorney establishes the existence of extraordinary circumstances. Raise the Age legislation (“RTA”) does not define extraordinary circumstances. Extraordinary circumstances must be defined and determined on a case by case basis. One can infer from review of New York Assembly Debate on Assembly Bill A03900C, §1, part WWW. April 8, 2017, Page 39, that the legislative intent is for a definition to include facts which are unusual and heinous or remarkable. The Court, in its discretion, should look for circumstances that go beyond what is regular and foreseeable in the normal course of events and proof that the child is not amenable or would not benefit in any way from services. Id. at 39. As articulated in People vs. J.P., 63 Misc 3d 635 (2019), it is the legislative intent that the extraordinary circumstances requirement be “a high standard for the DA to meet. And under this bill, denials of transfer to the family court should be extremely rare Transfer to the family court should be denied only when highly unusual and heinous facts are proven and there is strong proof that the young person in not amenable or would not benefit in any way from the heightened services in the family court.” See, NY Assembly Debate Transcript at 39 [April 8, 2017]. We look first to the Indictment and the factual part of the instrument appears to support the elements of the alleged offenses. However, this Court does not find the Indictment setting forth the behavior of AO to be statements of sworn facts based upon personal knowledge. Since the factual part of an unsworn accusatory instrument cannot be the basis for extraordinary circumstances finding, the Court considers whether the content of the non hearsay statements upon which the People rely in the totality demonstrates extraordinary circumstances. The People argue the Court should consider the facts and circumstances leading to the instant offense. More specifically, the especially cruel and heinous acts by AO, his lack of amenability to services, the impact removal will have on the health and safety of the complainant and that removal would result in a lack of confidence in the judicial system. The People contend that AO and D.N. had a romantic relationship that ended in or about July 2019. AO continued to make unwanted contact with D.N. via text messages, Snap Chat and Instagram. AO’s behavior caused D.N. to block his attempts to contact her electronically. Yet AO persisted in trying to contact her through use of unknown numbers and acquaintances. Moreover, the People argue that AO at the time of the offense violated the Order of Protection issued by Hon. Mary G. Carney. According to D.N., on August 25, 2019, AO climbed onto a garage at her home and knocked on her bedroom window. D.N. awoke from her sleep to see AO standing there on the roof. D.N. called the police. AO left by the time the police arrived. On August 27, 2019, at approximately 3:45A.M., Yasmin Rivera (D.N.’s mother), was awaken by the sound of the rear door handle being “jiggled”. D.N. saw AO in her backyard. This incident was reported to the police. On September 9, 2019, at approximately 2:30A.M., AO banged on the rear door of D.N.’s home. He also sent a text message to Luis Fuentes (D.N.’s step-father) at this approximate time. AO sent Mr. Fuentes a picture of the rear door handle of the home. Subsequently, AO sent a text message to Mr. Fuentes referencing calls made to the police and his ability to escape apprehension. As a result of AO’s conduct, D.N. was granted a temporary order of protection on September 9, 2019 by the Hon. Mary G. Carney of Erie County Family Court. The order directed AO to stay away for the home and person of D.N., to refrain from offensive conduct towards her, and to refrain from communications with her in any form. On September 16, 2019, at approximately 3:35A.M., D.N. was awakened by the sound of breaking glass at her home. D.N. saw AO in her backyard as he was walking away from the home. On December 25, 2019, AO text messaged D.N. and referenced her loved ones, stating that he was in possession of hollow point bullets. He asked D.N. whether she was aware of what the bullets were capable of doing. AO also told D.N. that she should imagine the bullets harming her grandmother, a dog and a child. On December 27, 2019, at 3:30A.M., AO broke a downstairs window and entered D.N’s. home. AO threatened D.N. and her mother with a knife and hammer. D.N. described AO’s actions as “jabbing the knife at us”. D.N. and her mother were forced out of their home while two younger children remained inside. D.N. was able to call the police. AO then grabbed D.N. around the neck and placed the knife to her neck. AO fled the scene with the knife, hammer and D.N.’s cell phone after realizing the police had been called. Defense Counsel (“Counsel”) argued the People failed to focus on the facts and simply rely on the charges themselves and their attempt to persuade the court by instilling a sense of anxiety that public will lose confidence in the judiciary if the motion is not decided in its favor. Counsel further argues that AO’s behavior was merely the result of “teenage obsession [and] unrequited love” and that any alleged violation of protective orders is “far from highly unusual, exceptionally cruel or heinous” behavior. 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. In keeping with the spirit of the RTA legislation, the Court concludes that a transfer to the family court should only be denied when the aforementioned factors exist, and there is strong proof that the young person in not amenable or would not benefit in any way from the heightened services in the family court. In making its determination, this Court will not deviate from the expressed factors as articulated by the legislation. Here, D.N. ended the relationship with AO in or about July 2019. AO nevertheless continued to contact D.N. without her permission and against her request. AO continued to go to D.N.’s house. He destroyed her property and her parents’ property. His behavior resulted in an order of protection being entered against him. Nevertheless, AO continued his pursuit of D.N. AO committed a series of crimes over a series of days. While the alleged crimes were not all felonies, this Court cannot ignore the continuous aggressive and violent behavior over the referenced series of days. AO’s pattern of cruel behavior and conduct amounts to what could be described as terrorism. He attempted to exert control over D.N. through use of a broad range of power and control tactics including physical violence. AO continuously engaged in a course of conduct of domestic violence over a span of time. The alleged behavior of AO went far beyond what is usual or could be considered teenage obsession or unrequited love as argued by Counsel. AO’s electronic messages were threatening in their content and meant to keep D.N. living in a state of fear. He sent pictures of the home while standing in her backyard in the early morning hours along with text messages that went from asking for forgiveness to threats of harm to D.N. and her loved ones. Then when a series of text messages went unanswered, AO sent threatening messages of her family members being shot. If that were not enough, AO discussed the order in which he would kill her loved ones and asked D.N. who she would like to see shot first. Then he gave D.N. the option of having her mother or her little brother shot first and allowing her to watch. On December 27, 2019, AO acted upon his threats. He returned to D.N.’s home armed with a knife and a hammer. He entered the home by breaking a window encountering D.N. and her mother. He “jabbed” the knife at Ms. Rivera and D.N. while her young siblings remained upstairs. Ms. Rivera begged him not to harm anyone. Nevertheless, AO grabbed D.N. by the neck and held the knife to her neck. As stated by D.N., she is “terrified”. While there is no evidence AO was a leader of the criminal activity who threatened or coerced other reluctant youth into committing the crimes before the Court, it is clear he was the leader of his own criminal activity. His perpetration of terrorism toward D.N., a child, was especially cruel, unusual and heinous. This Court further concludes that AO is not amenable to services. AO has a juvenile delinquency history with the family court and a case currently pending there. One of the juvenile cases was the result of a removal from Erie County Youth Part on November 7, 2019. D.N. was the complainant therein. In the family court proceeding a warrant was issued by Hon. Brenda M. Freedman due to the AO’s failure to appear. AO was ultimately placed on probation in the family court proceeding. Moreover, AO had a family court order of protection issued against him while on probation and he continuously violated the provisions therein. Finally, the People argue that removal would result in a lack of confidence in the judicial system by the complainant and the community in general. The Court finds this argument unpersuasive and unsupported by fact or law. RTA sets out factors for the court to consider when reaching its conclusion. The Court has the continued obligation to make determinations based upon fact and law, not fear or conjecture. The Court must rely upon the facts and the law presented in evidentiary form. At no point have the People proffered any law or non-hearsay evidence for this Court’s consideration relative to the complainant’s or community’s lack of confidence in the judiciary. In sum, this Court cannot consider this argument as it relies solely on speculation. Based upon the foregoing, the Court concludes that the People have met its burden and finds that extraordinary circumstances exist to prevent removal of this action to the family court. So Ordered, Dated: February 24, 2020
