DECISION & ORDER The Defendant is charged as an Adolescent Offender (“AO”) on a Felony Youth Complaint with two counts of Attempted Murder in the Second Degree [PL §110/125.25(1)], two counts of Criminal Possession of a Weapon in the Second Degree [PL §265.03(1)(B)] & [PL §265.03(3)], Reckless Endangerment in the First Degree [PL §120.25], two counts of Attempted Assault in the Second Degree [PL§110/120.05(2)], and related charges. PROCEDUARL HISTORY The Defendant was initially arraigned before an Accessible Magistrate on May 22, 2020, pursuant to CPL §722.21(1), bail was set, and the matter adjourned to the Youth Part for May 26, 2020. The Defendant is seventeen years old, having been born on June 26, 2002, thus by law, he is considered an Adolescent Offender (hereinafter “AO”). See CPL §1.20(44). On May 26, 2020, notices were served, and the People stated their intention not to consent to removal of the case to Family Court, citing the serious nature of the alleged offenses. Bail was continued and the matter was then adjourned to May 26, 2020, for the Court to conduct a joint Preliminary and Removal Hearing pursuant to CPL §722.21(3) and CPL §180.60(1). After the Hearing, the Court found reasonable cause to believe that the AO had committed a felony and thus the People had met their burden for the Preliminary Hearing. However, based upon the testimony and evidence presented, the Court determined that the People failed to establish that the AO committed a Violent Felony Offense (“VFO”) as required under CPL §722.23(2)(c), and held that the matter was now presumptively removable to Family Court. On the Felony Youth Complaint, the AO is charged with multiple violent felonies as defined by PL §70.02, for which there is no presumption of removal to Family Court, see, CPL §722.21(1). At the Hearing, the People chose to present evidence only as to the charges of Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Firearm.1 The Court found that although the People met their burden that the AO possessed a firearm, they failed to prove that the weapon was actually displayed.2 Therefore, the matter was presumptively subject to removal, unless, the People can demonstrate that “extraordinary circumstances” exist that would prevent the transfer of the within matter to Family Court. See, CPL §722.23(1)(d). The People singled their intention to prevent removal and a motion schedule was set. The People filed their motion on June 23, 2020. Annexed to the People’s motion is the Affirmation of the Assistant District Attorney; a ShotSpotter Investigative Lead Summary; three photographs; two NYC Police Department Firearms Analysis Laboratory Reports; and two Court Decisions. The Defense submitted written opposition dated July 8, 2020. The matter was adjourned to July 15, 2020, for decision on the papers and Grand Jury presentation. Upon a reading of the papers submitted, and due deliberation, the People’s motion to prevent removal of this matter to Family Court is denied. The Court now memorializes its findings of fact and conclusions of law as followings: FINDINGS OF FACT The felony complaint alleges, in sum and substance, that on or about May 22, 2020, at approximately 1:03 a.m., on a public street within the confines of the County of Kings, that the Defendant did pull out a firearm, point said firearm at the complainant, and discharge the firearm multiple times in the complainant’s direction. This conduct by the Defendant caused the complainant to fear physical injury and to become alarmed and annoyed. The felony complaint also alleges that the Defendant fired and hit a parked vehicle. The felony complaint further alleges that a black.40 caliber Glock, which contained (1) live round in the chamber and nine live rounds in the magazine was recovered under a bus seat from which the Defendant was a passenger. The Court notes that the Deponent of the felony complaint is Police Officer Richard Catapano, and that his information and belief as to the Defendant’s alleged actions was based on information provided by three complaining witnesses whose names are contained within the felony complaint. In their motion, the People contend that the matter should not be removed to Family Court because the AO, through his actions, has demonstrated that he would not be amenable to the rehabilitative services offered there. As evidence, they reference the AO’s multiple criminal contacts in the State of Pennsylvania, his adjudication as a “Juvenile Offender” in Pennsylvania, his adjudication as a Youthful Offender last year in New York, and now present case. The People further argue that the AO is ineligible for Family Court, as a matter of law, since he is now eighteen years old, as of June 26, 2020 and, therefore Family Court is no longer a viable alternative. Accordingly, the People state they have met their burden and the matter should remain in the Youth Part in Supreme Court. The Defense argues that the AO currently stands before the Court having never been convicted of a crime. That the AO was adjudicated a Juvenile Delinquent in Pennsylvania and not a Juvenile Offender as the People had asserted and therefore it is improper for the People to even raise it in their papers. Also, the AO’s Youthful Offender adjudication was on a misdemeanor and not a felony. The Defense argues that based on the AO’s many challenges growing up, that Family Court can provide the age appropriate services necessary to address his behaviors and help him develop the skills necessary for rehabilitation. The Defense further argues that removal to Family Court is not foreclosed because the AO has turned eighteen years old based on a clear reading of the New York State Family Court Act. As a result, the Defense contends that the People have failed to show extraordinary circumstances and, that there is no legal impediment based on the AO’s current age to prevent removal of this matter to Family Court. CONCLUSIONS OF LAW Pursuant to CPL §722.23, for Adolescent Offenders, all eligible matters shall be removed to Family Court after arraignment, unless; 1) the DA brings a motion to prevent transfer and the Court finds that offense should not be removed because of extraordinary circumstances, or, 2) the Youth is charged with a violent felony offense and the People prove, by a preponderance of the evidence, one or more of the following as set forth in the accusatory instrument: (i) the defendant caused significant physical injury to a person other than a participant in the offense; or (ii) the defendant displayed a firearm, shot gun, rifle or deadly weapon as defined in the penal law in furtherance of such offense; or (iii) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the penal law. The New York State Legislature, when contemplating raising the age of criminal culpability for 16 and 17-year-old youth, it was with the purpose and general idea that those young people, who are charged with a crime, may be treated in a more age appropriate manner. That the changes implemented would reflect the evidence that the current system had not been effective in deterring and preventing future crime, while maintaining a mechanism that youth, on a case by case basis, may be tried in adult criminal court when the circumstances warranted (see, https://www.nysenate.gov/legislation/bills/2017/s4121). The guidelines that the courts must follow are set forth in Article 722 of the Criminal Procedure Law. However, as is the case here, the Legislature and the text falls short of defining what would constitute “extraordinary circumstances”. As such, extraordinary circumstances must be determined on a case by case basis. The Court notes that other Youth Part jurisdictions in the State have already contemplated this issue, with the outcomes dependent on the Judges interpretation of the law and facts before them. That being said, appellate guidance as to this issue remains lacking. In the Miriam/Webster dictionary, “extraordinary” is defined as, going beyond what is usual, regular, or customary. “Extraordinary Circumstances”, are defined as, factors beyond a party’s control that normal prudence and experience could not foresee, anticipate or provide for. And defined in Black’s Law Dictionary as out of the ordinary; exceeding the usual, average, or normal measure or degree. The Legislature framed its discussion of extraordinary circumstances in terms of aggravating and mitigating factors that the Court could consider. Among the aggravating factors that a Court might consider were (1) whether the AO had committed a series of crimes over many days; (2) whether the AO had 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 youths into committing the crimes before the court (Assembly Record, p.40). In contrast to the short list of aggravating factors a court could consider, the Assembly set forth a lengthy, comprehensive list of mitigating factors. These factors include economic difficulties faced by the AO, substandard housing the AO may have lived in, educational challenges experienced by the AO; and emotional/psychological difficulties the AO may have, such as lack of insight, susceptibility to peer pressure die to immaturity, the absence of positive role models or positive behavioral role models in the AO’s life, and abuse of alcohol or drugs (Id. At 40); see also People v. B.H., 63 Misc.3d 244 at 248 (N.Y. Sup. Ct. 2019). A further review of the legislative history found that the Assembly envisioned that the courts, in assessing these aggravating and mitigating factors, would fashion a standard with a “very high bar” for retention of cases in the Youth Part, a standard which would take into consideration all of the factors in a given case and where, ultimately, “one in a thousand” cases would be held in Criminal Court and the rest would go to Family Court (assembly Record, 83-84) (emphasis added). Before the Court makes a determination as to extraordinary circumstances, the Court must first address if removal to Family Court is permissible given the AO is now eighteen years old. Pursuant to Family Court Act §302.2: A juvenile delinquency proceeding must be commenced within the period of limitation prescribed in section 30.10 of the criminal procedure law, or, unless the alleged act is a designated felony as defined in subdivision eight of section 301.2, commenced before the respondent’s eighteen birthday, whichever occurs earlier. When the alleged act constitutes a designated felony as defined in subdivision eight of section 301.2 such proceeding must be commenced within such period of limitation or before the respondent’s twentieth birthday, whichever occurs earlier. Family Court Act §301.2(8) reads, in pertinent part; “Designated felony act” means an act which, if done by an adult, would be a crime…(iii) defined in the penal law as an attempt to commit murder in the first or second degree or kidnapping in the first degree committed by a person thirteen, fourteen, fifteen, or sixteen, or commencing October first, two thousand nineteen, seventeen years of age. In the present case, the AO was seventeen years of age at the time of the alleged offenses, and although he is now eighteen years old, FCA §302.2 allows for the commencement of a juvenile delinquency proceeding up until his twentieth birthday, so long as the AO is charged with a designated felony. Here, the AO is charged with two counts of Attempted Murder in the Second Degree [PL §110/125.25(1)], and, pursuant to FCA §301.2(8), this falls under the definition of a designated felony. Accordingly, the Court finds that the AO’s current age, in and of itself, does not preclude this matter from being removed to Family Court. The Court must also address the People’s reference to the AO’s adjudication as a Juvenile Delinquent in Pennsylvania. FCA §§380.1 & 381.2(1), generally prohibits the use of juvenile delinquency adjudications against an individual’s interests in judicial proceedings. Evidence from juvenile delinquency proceedings is inadmissible with an exception permitted only for sentencing in a criminal action. See, FCA §381.2(2). As the AO is not facing sentencing at this point of the proceeding, any reference to his juvenile delinquency adjudication is therefore improper and will not be considered by the Court. (see, People v. Campbell, 98 A.D.3d 5, 946 N.Y.S.2d 587, [Sup. Ct. App. Div. 2d 2012]; People v. Francis, 137 A.D.3d 91, 25 N.Y.S.3d 221, [Sup. Ct. App. Div. 2d 2016]). The Court will now consider the People’s argument as it pertains to extraordinary circumstances. Pursuant to CPL §722.23(1)(b), a “motion to prevent removal of an action in the youth part shall be made in writing…and the motion shall contain allegations of sworn fact based upon personal knowledge of the affiant”. To support their argument that extraordinary circumstances exist to prevent removal, the People, in their motion papers, delineated a timeline leading up to the AO’s arrest. The Assistant District Attorney’s Affirmation weaves a story of suspense, intrigue, and violence. It paints a picture of the AO’s wanton disregard for both public safety and private property. It attempts to fill in gaps and provide “testimonial evidence” which this Court found was lacking in the Preliminary Hearing. The Affirmation speaks of the AO’s “extensive and violent” out of state criminal contacts, of which the People contend the AO was adjudicated a Juvenile Offender as to one of those matters. The Affirmation further avers to the AO’s New York State criminal history in which he was adjudicated a Youthful Offender on a misdemeanor plea in January 2019. In other words, the People argue that the AO has exhibited a disregard for public safety such that removal would significantly diminish the safety and welfare of the community. The Court finds the allegations contained within the People’s moving papers are rife with hearsay and, are wholly unsupported by any Affidavits of individuals with personal knowledge of the facts and circumstances leading up to the AO’s arrest. Further, the exhibits contained within the moving papers and annexed to the Affirmation, except for the New York State Firearms Analysis Reports, standing alone, and without a proper verification, are also of no evidentiary value. The Court notes that the People did not annex a copy of the Felony Youth Complaint, which is the basis of the matter sub judice, nor any Supporting Affidavits from the Complaining Witnesses from whom the allegations against the AO are based. Although the Assistant District Attorney in his Affirmation lays out in detail the events which lead up to the AO’s arrest, his Affirmation, without supporting Affidavits of individuals with personal knowledge, falls short of the statutory requirements to meet the People’s burden. See, CPL §722.23(1)(b). As a result of the People only presenting their case as to the charges of Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Firearm, and providing no further admissible supporting documentation, the Court must limit its analysis on extraordinary circumstances accordingly. At the Preliminary Hearing, Police Officer Richard Catapano testified that on May 22, 2020, at approximately 01:00am, he and his partners responded to a radio run for shots fired and a male with a gun. Officer Catapano and his partners canvassed the area, noticed the AO standing at a bus stop looking their way and entering the bus. The officers initiated a stop of the bus by activating their police lights and entered the bus. Upon entering the bus, they notice the AO sitting in a seat with no one around him. They removed the AO and, upon a search of the bus, located a firearm under the seat directly in front of where the AO was sitting. Officer Catapano subsequently placed the AO under arrest. Other than the operator of the bus, the People provided no other witnesses, nor any surveillance footage linking the AO to the alleged shootings at the Hearing. Therefore, based upon the testimony and evidence elicited at the Preliminary Hearing, the Court found that the People met their burden that the AO possessed a firearm. However, mere possession is not enough to prevent removal, the firearm must also have been displayed. At the Hearing, the People failed to prove, through testimonial and admissible evidence, that the AO actually displayed the firearm and as a result, the matter is removable. See, CPL §722.23(2)(c)(ii), see also, People v. M.M, 63 Misc.3d 772 [Nassau County, 2019]; People v. J.W., 63 Misc.3d 1210(A) [Sup. Ct., Kings County 2019]. The Court while mindful that the charges are serious, and the conduct alleged by the AO is troublesome, the Court nonetheless must be guided by the statutory guidelines as set forth in the Criminal Procedure Law. Accordingly, this Court finds that the People have failed to meet their burden that extraordinary circumstances exist such that would prevent removal of this matter to Family Court pursuant to CPL §722.23(1), and there is no legal impediment based on the AO’s current age. Therefore, the People’s motion to prevent removal to of this matter to Family Court is denied. This constitutes the Decision and Order of the Court. Dated: July 15, 2020
