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 February 5, 2020, Supporting Affidavit of Meredith Mohun, Esq. (Assistant District Attorney), dated February 5, 2020, in support of the motion, Answering Affirmation and Memorandum of Law in Opposition of the Motion to Prevent Removal by Lana V. Tupchik, Esq., dated February 10, 2020, on behalf of the defendant K.J., and oral argument having been held on February 27, 2020, with neither party requesting a hearing, and due deliberation having been had, the Court finds the following: Procedural History This action was commenced on January 13, 2020, by way of Felony Complaint that charged the principal, K.J., with Robbery in the First Degree, as defined by Penal Law §160.15(2). K.J. was subsequently indicted by the Grand Jury with Robbery in the First Degree, as defined by Penal Law §§160.15(2), 20, an armed felony. K.J. was born on July 17, 2003. It is alleged that K.J. committed the crime on December 23, 2019. Therefore, K.J. was sixteen years old when the crimes were alleged to have been committed. Thus, by law K.J. is considered an Adolescent Offender (hereinafter, “AO”). See CPL §1.20(44). AO was arraigned on the Felony Complaint by Accessible Magistrate, Hon. Diane Y. Wray on January 13, 2030. Bail was set for AO. AO was brought before this Court for an initial appearance the following day and was released under the supervision of probation. On January 22, 2020 at the six-day reading of the accusatory instrument it was determined the People could not meet the requirements of CPL §722.23(2)(c). The People were ordered to proceed in accordance with CPL §722.23(1). On February 5, 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 a Supporting Affidavit by Meredith M. Mohun, Assistant District Attorney (the “Supporting Affidavit”). Attached to the Supporting Affidavit are a copy of Felony Complaint dated 1/13/2020, a copy of Felony Complaint against AO dated 11/8/2019, Statement from victim Terry R. Anderson dated December 23, 2019, Liberty Cab fare Summary, Transcript of Felony Hearing held in this Court on December 27, 2019 of AO’s co-defendant, a video recording from Liberty Cab recorded on 12/23/2019, a video recording from a home security system at 37 Ericson Avenue, Buffalo, NY recorded on 12/23/2019, a copy of Felony Complaint against AO for an alleged incident that occurred on January 5, 2020, Statement regarding the alleged incident that occurred on January 5, 2020 from victim Mary J. Young witnessed and dated January 10, 2019, and recorded interview of the AO conducted by Buffalo Police Detectives Castillo and Reuther on January 13, 2020 at Buffalo Police Headquarters. On February 10, 2020, Defense Counsel (hereinafter, “Counsel”) filed its Answering Affirmation and Memorandum of Law in Opposition of the Motion to Prevent Removal (hereinafter, the “Answering Affirmation”) by Lana V. Tupchik, dated February 10, 2020. Attached to the Answering Affirmation is a letter from Brigette Gillespie, the principal of AO’s school dated February 10, 2020. On January 31, 2020, the Grand Jury Indictment was filed in Youth Part. AO was arraigned on the Indictment on February 27, 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 Complaint as the accusatory instrument for motion purposes. The People nevertheless included and relied on the content of the Felony Complaint, among other things, in support of its application to prevent removal to family court. Extraordinary Circumstances Standards 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 responded timely. 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 Felony Complaint dated 1/13/2020, Felony Complaint against AO dated 11/8/2019, Statement from victim Terry R. Anderson dated December 23, 2019, Liberty Cab fare Summary, video recording from Liberty Cab recorded on 12/23/2019, video recording from a home security system at 37 Ericson Avenue, Buffalo, NY recorded on 12/23/2019, Felony Complaint against AO for an alleged incident that occurred on January 5, 2020, Statement regarding the alleged incident that occurred on January 5, 2020 from victim Mary J. Young witnessed and dated January 10, 2019, and recorded interview of the AO conducted by Buffalo Police Detectives Castillo and Reuther on January 13, 2020 at Buffalo Police Headquarters all contain hearsay and/or do not contain allegations of “sworn facts” 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 transcript of Felony Hearing held in this Court on December 27, 2019 which falls within the mandate of CPL §722.23(1)(b). In addition, the Court takes judicial notices of its own prior orders and AO’s other currently pending matters before Youth Part. 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 State Assembly Debate at 39 submitted in accordance with NY Assembly Debate on Assembly Bill A03009C, §1, part WWW, Apr. 8, 2017, 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 Records-of Proceeding at 39 [April 8, 2017]. The intent of RTA and the legislative discussion of ‘extraordinary circumstances’ directs the Court to factors and circumstances which should be considered in its determination. With the aggravating factors making it more likely that matter should not be removed and the mitigating circumstances making it more likely that the matter should be removed. Neither list is meant to be exhaustive, but rather provide guidance as to what the intent of the type of analysis that the Court should engage in when determining the existence of extraordinary circumstances. The listed aggravating factors are (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. See transcript of New York State Assembly session April 8, 2017, pg. 40. The listed mitigating circumstances, meant to include a wide range of individual factors, are economic difficulties, substandard housing, poverty, difficulties learning, educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavior models, abuse of alcohol or controlled substances by the AO, be family or peers. See transcript of New York State Assembly session April 8, 2017, pg. 40. Arguments We look first to the Felony Complaint which served as the basis for commencement of this action and subsequent Indictment which sets forth in detail the factual allegations of the crime charged. The factual parts of the instruments seem to support the elements of the alleged offenses. However, this Court does not find the instruments 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 the content of the People’s argument in its the totality when determining extraordinary circumstances. The People argue that extraordinary circumstances exist when this case is viewed in the totality of its circumstances. They articulate these circumstances that the AO presently has two separate matters pending before Youth Part. In the instant matter AO is charged with Robbery in the 1st Degree and a second matter that is alleged to have occurred thirteen days later, charging AO with Robbery in the 2nd Degree. That AO’s criminal activity is escalating as the latter matter (January 5, 2020 incident) has already been retained in Youth Part after it was determined at the six-day reading that the People meet the requirements of CPL §722.23(2)(c)(i). That AO was acting with an adult-like mindset to the extent that the cab was requested with the intension of robbing the driver. That AO is not amenable to services as AO had a prior matter that was removed from Youth Part to probation for a ninety-day adjustment period on December 19, 2019. The People point out that AO was only four days into his adjustment when this alleged incident occurred on December 23, 2019. Finally, the People argue that removal to Family Court would lead to duplicative outcomes due to AO already having a matter that is known to be remaining in Youth Part. Counsel argue that extraordinary circumstances do not exist because the People failed to submit proof that the allegations against AO include facts that align with the aggravating factors. Moreover, Counsel argues that AO has significant mitigating circumstances that the Court should take into consideration that would prompt removal. Circumstances such as AO has and IEP, is bullied in school, was raised by a single parent, has a one-year old child of his own, is currently not enrolled in school, his family has financial difficulties, and does not have health insurance. AO also relies on a letter from his principal articulating AO’s challenges in school. Analysis In every motion to prevent removal the Court must look at the case individually and with all its own intricacies and nuances. The matter must be looked at in totality including aggravating factors and mitigating circumstances. In the present case the aggravating factors are troubling. First, AO is charged with two violent felonies that are alleged to have been committed less than two weeks apart from one another. Second, AO’s alleged involvement in the crimes has escalated from being a participant in an armed robbery on December 23, 2019 to a solo operator displaying a firearm at a victim on January 5, 2020. Third, AO was to be engaged with probation during the time when the alleged crimes took place. Fourth, the charges against AO from the January 5 incident are remaining in Youth Part because the People met its burden pursuant to CPL §722.23(2)(c)(i). While cases must be looked at individually, Youth Part judges across New York State have been hearing and writing decisions for some time now to define extraordinary circumstances. Thus, there is a pool of case law that can be reviewed and should be considered. It has been consistently held, both by this Court, and others across the State that an AO who is charged with more than one violent felony, occurring within a few weeks, where the crimes are escalating, and the AO is under the supervision of probation services at time when new charges are filed, removal to family court is denied. See People v. J.M., FYC-70023-19, Supreme Court, Bronx County (February 19, 2019), People v. A.T., FYC-70020-19, Youth Part, Erie County (March 25, 2019), People v. J.B., Youth Part, Onondaga County, FYC- 70016-9-19/001 (March 26, 2019), People v. C.M., Youth Part, Onondaga County, FYC- 70127-8-19/001 (September 25, 2019). This is the case here where AO is charged with robbery of a cab driver on December 23, 2019. A video of the robbery was shown to the Court during the prior felony hearing which showed AO’s co-defendant pointing a rifle at the complaint. This occurred while AO was released under the supervision of probation. AO is then later charged with armed robbery of another cab (from the same cab company called to the same location) less than two weeks later. AO did this without any co-defendants. And again, while AO was released under the supervision of probation. This escalation in criminal behavior is sufficiently unusual to satisfy the legislative intent when coupled with AO’s proclivity to commit crimes within a brief period notwithstanding the fact that he was under supervision of probation. This Court would be remiss to not address the numerous mitigating circumstances that Counsel argued are present for AO. While they clearly fall within the examples articulated by the legislators, they simply do not outweigh the overwhelming evidence of aggravating factors herein. 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: March 4, 2020
