DECISION after a hearing held before HON. VANESSA E. BOGAN, Onondaga County Youth Part Judge, on the 13th day of July, 2020. DECISION AND ORDER The People have moved this Court to find extraordinary circumstances are present and sufficient to prevent the removal of the case under FYC-70106-20/001 (DR NO.: 20-299358) to Family Court. After proper review and due consideration, the Court provides the following written decision: DECISION AND ORDER The defendant C. S. (d.o.b. 6/21/2003) is an adolescent offender. He was charged with Assault in the Second Degree in violation of Penal Law §120.05(7) regarding an incident that is alleged to have occurred on June 8, 2020 at the Hillbrook Juvenile Detention Center, 4949 Velasko Road, Town of Onondaga, New York. PROCEDURAL HISTORY 1. The defendant was arrested, while already in custody at the Hillbrook Juvenile Detention Center on an unrelated criminal charge, on June 8, 2020 by the Onondaga County Sheriff’s Office. 2. The defendant was arraigned before me in Youth Part on June 12, 2020 and entered a plea of “Not Guilty.” The Preliminary Examination and six-day review were scheduled for June 17, 2020 and the defendant’s remand to custody was continued. 3. On June 17, 2020, the Preliminary Examination was adjourned to June 24, 2020 upon the consent of counsel. The six-day review was also adjourned upon counsel’s consent for purposes of obtaining more detailed medical records pertaining to the victim’s injuries. 4. On June 24, 2020, the People advised the Court and defense counsel that they were not going to proceed on the Preliminary Examination. The defendant reserved his rights under CPL §180.80. Upon counsel’s consent, the six-day review was adjourned to June 29, 2020 to allow the People an opportunity to obtain additional medical records. 5. On June 29, 2020, the six-day review was adjourned upon consent of counsel to July 6, 2020. 6. On July 6, 2020, the Court concluded, pursuant to CPL §722.23(2)(c), that the People did not prove by a preponderance of the evidence that “the defendant caused significant physical injury to a person other than a participant in the offense,” (CPL §722.23[2][c][i]). The People advised the Court they would file a written motion, pursuant to CPL §722.23(1) to prevent the removal of the action to Family Court. The Court continued the defendant’s remand. The Court thereafter scheduled the Extraordinary Circumstances Hearing for July 13, 2020. 7. The People submitted their written motion, pursuant to CPL §722.23(1)(d), dated July 7, 2020, requesting the Court determine there were extraordinary circumstances, sufficient to prevent the removal of the assault action to Family Court. Defense counsel submitted their written opposition to the motion, dated July 10, 2020. 8. On July 13, 2020, the Court heard argument from counsel in support of their respective positions on the motion. 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, prior documentary submissions to the Court and oral arguments tendered on July 13, 2020. Contained within the People’s submissions were several video recordings of the incident that took place in a room at Hillbrook on June 8, 2020. Copies were provided to the defense as well. The Court and defense counsel were able to view the videos prior to the July 13, 2020 Court appearance and were referenced by counsel during oral arguments. 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 advised counsel that a written decision would be issued pursuant to CPL §722.23(1)(e). LAW REGARDING EXTRAORDINARY CIRCUMSTANCES AND THE APPLICATON OF THE LAW TO THE FACTS OF THIS CASE 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.” 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…” The People’s submissions, including the videos, contained sufficient facts for the Court to consider and conclude whether or not to grant the motion to prevent removal based upon sufficient extraordinary circumstances. 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. 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. Although there is a presumption against holding a defendant in custody (CPL §723.23[1][f]), there are no such presumptions or guidance by the statute to assist the Court in its determination of extraordinary circumstances sufficient to prevent removal to Family Court. This Court relies on the Intranet of the NYS Unified Court System, RTA Decision Bank, and access to several decisions by other Youth Part judges (including this Court) throughout New York State. Furthermore, this Court has reviewed the legislative history and 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), which 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. Without such a determination, the defendant’s case will be removed to Family Court. FINDINGS OF EXTRAORDINARY CIRCUMSTANCES The defendant1 is accused of acting in concert with J. M. (another youth who was being detained and housed at the Hillbrook Juvenile Detention Center regarding an unrelated crime) to assault the victim, J. S. (who was also being detained and housed at the Hillbrook Juvenile Detention Center). In the June 8, 2020 video recording provided to the Court, the victim, J. S., was present in a lounge type room standing near a window. He did not move from that area during the entire incident. The defendant was seated about 10 to 15 feet away. A staff member was seated at a desk close to the victim. After several minutes the defendant stood up and slowly, and rather innocuously, began walking toward the desk and window area. The staff member arose from his chair and walked around his desk. The scene was set. The co-defendant, J. M., entered the room while the defendant engaged the staff member in a brief, fist bumping type conversation. The victim’s head was turned, looking out the window. The defendant and co-defendant established eye contact and, in an almost simultaneous move, the co-defendant punched the victim with a straight right cross to the left side of the victim’s face, while the defendant sped past the staff member. As the victim fell to the floor, both J. M. and the defendant commenced, simultaneously, to kick and stomp the victim, who was lying unconscious and not moving, all over the victim’s body, including the victim’s head and torso. This kicking and stomping continued for a few seconds until the staff member, already present in the room, pulled the defendant away from the victim, while another staff members entered the room and pulled J. M. away from the victim. After J. M. and the defendant were pulled out of the room, the victim remained on the ground during the next five minutes. The recording provided by the People then ended. The victim did appear to move somewhat, but the records from the ambulance company indicate the victim was moved directly from the ground to the stretcher and thereafter to the ambulance and then taken to the hospital. The victim has no recollection of the incident except to note he remembers being in the room and then awakening at the hospital. Amazingly, after spending several hours at the hospital and being examined and tested, he was released, and able to go back to the Hillbrook Juvenile Detention Center, apparently suffering no long lasting effects. The victim was just standing in the room. J. M. and the defendant clearly had planned and coordinated the attack, each playing a pivotal role. The defendant distracted the staff member, while J. M., standing just outside of the camera’s view for much of the time before he threw the punch, waited until the staff member was far enough away from the victim to allow himself (J. M.) to strike the victim. Once the distance was measured, J. M. struck the victim, simultaneous with the defendant rushing past the staff member. The victim never had a chance to escape or defend himself. The attack was brutal. Not being satisfied with rendering the victim unconscious, the defendant and J.M. proceeded to stomp and kick an unconscious and helpless person. Clearly the defendant and J. M. would not have stopped if not restrained by the staff. There were no signs or movements by the defendant or J. M. to show any intent to discontinue the assault. How many more kicks or stomps would it have taken to seriously injure or kill an unconscious and helpless youth? The attack was brutal, unprovoked, planned, coordinated and executed. Not every misdeed by a youth can be extraordinary by its very nature. However, defendant’s actions were not a random, spontaneous, impulsive act. His actions display a current lack of moral conscience, and a violent and mean spiritedness seldom seen by this Court. The defendant is out of control, unable to stop his behavior. Collectively, when all the factors are considered, proof of extraordinary circumstances sufficient to prevent removal were provided. In mitigation, and in opposition to the People’s motion, defense counsel argued that preventing the removal of the defendant’s pending charges to Family Court would thwart the very goals of Raise the Age. This Court has made clear, and reiterates now, the extraordinary circumstances determination is not solely limited to an analysis of the severity of the crime. Nor is it solely limited to an analysis of the individual’s history, status in the community and other factors unique to every person. It is the combination, analyzing as many factors that are available and can be brought before the Court, that provide the basis for this Court’s determination. Collectively, when all the factors are considered, proof of extraordinary circumstances sufficient to prevent removal were provided. Additionally, the Court is well aware that if the case was removed to Family Court, the Family Court Act provides for the possible placement of juveniles at facilities developed for treatment while protecting the public. Likewise, the Court is well aware that services are available to those individuals incarcerated under the Penal system. Both juvenile and adult probation also have programs available for its population. This is not the time, nor is the Court in any position (there have not been any convictions) to consider Youthful Offender status for the defendant. Finally, under new provisions of State and Federal Law, defendants such as C. S., if sentenced to a period of incarceration, would be segregated from the general adult prison population until their reaching the age of 18. CONCLUSION The Court concludes that extraordinary circumstances are present, sufficient to prevent the removal of the Assault in the Second Degree charge to Family Court and, therefore, the People’s motion to prevent the removal to Family Court is granted and the matters shall proceed in the Youth Court for further action. Dated: July 30, 2020
