The People move for an order preventing removal of the above captioned criminal action against defendant J.T. to the Family Court pursuant to CPL §722.23. The following papers were read: Notice of Motion — Affirmation of Jason S. Rosenwasser, Esq. Grand Jury Minutes 1-3 Natasha M. Turner, Esq.’s Affirmation in Opposition Annexed Exhibits 4-5 DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the People’s motion to prevent the removal of the instant criminal action against defendant J.T. to Family Court is granted. The Court makes the following findings of fact and conclusions of law. On December 23, 2020, the defendant J.T. was indicted on the violent felony charge of Burglary in the Second Degree in violation of Penal Law Section 140.25[1][b], Burglary in the Third Degree in violation of Penal Law Section 140.20, Grand Larceny in the Third Degree in violation of Penal Law Section 155.35[1], Criminal Possession of Stolen Property in the Third Degree in violation of Penal Law Section 165.50, and Tampering with Physical Evidence in violation of Penal Law Section 215.40[2]. The aforesaid felonies were allegedly committed on December 6, 2020 when the defendant was 17 years old. The evidence submitted to the Court reveals the following summary of events: The indictment stems from an incident that occurred on December 6, 2020, in the early morning hours at Big Boyz Toys, 5512 Route 9W, Town of Newburgh, Orange County, New York. Big Boyz Toys is a business that sells powersport/motorsport products such as dirt bikes, go-karts, and various all-terrain vehicles. On December 6, 2020, the Town of Newburgh Police responded to the location as a result of a call from the owner, Anthony Galimberti. Galimberti stated that he was alerted by his security system to motion at the business at a time when it was closed and when no persons had permission or authority to be there. Through remote access to his security cameras, Galimberti observed three individuals loading various motorsport vehicles into a white van. When police responded to the business they observed the white van, and upon making the observation, the officer positioned his marked police vehicle perpendicular across the exit to the business in an effort to block the van’s path of travel. The van promptly went around the police vehicle, over the grass, and onto Route 9W where a high-speed chase ensued. The pursuit lasted approximately eight miles and ended with a massive multiple vehicle collision in the City of Newburgh. During the course of the pursuit, the white van traveled at speeds in excess of 100 mph in 30 mph speed zones, passed other vehicles unsafely and at high rates of speed, and disobeyed numerous traffic control devices. On multiple occasions, large motorsport vehicles were thrown from the rear doors of the van directly into the path of travel of multiple police vehicles, apparently in an effort to strike the police vehicles and allow the van to get away. The motorsport vehicles that were thrown out of the back of van included two (2) dirt bikes and a go-kart. One State Police vehicle was unable to avoid one of the thrown vehicles and struck the same, causing an accident and property damage. Once in the City of Newburgh, the white van ran a steady red light and struck a jeep being operated by Brian Pajilla, causing him significant physical injury and totaling his vehicle. The white van then lost control as a result of the initial collision with the Jeep, rolled over several times, and then struck multiple parked vehicles in the lot of an auto repair shop. The van was traveling at such a high rate of speed that the force of the impact split a telephone pole in half and demolished multiple parked vehicles. As a result of the collision, Eric Ocasio (an accomplice who was a passenger in the van), DOB xx/xx/97, died from the injuries he sustained. The police investigation revealed that co-defendant Luis Colon was the operator of the vehicle, and defendant J.T. and Ocasio were passengers who assisted in throwing the motorsport vehicles from the rear of the van. They encouraged, solicited, requested, commanded and intentionally aided Colon to engage in the high speed flight from police. Colon stated that defendant J.T. and Ocasio kept yelling “go, go, go” during the pursuit and both participated in throwing the motorsport vehicles from the rear of the van. Colon stated that defendant J.T. attempted to throw the vehicles out of the van alone at first, but due to his size and the size of the machines, he requested the assistance of Ocasio (Affirmation of Chief Trial Assistant District Attorney Jason S. Rosenwasser, paragraph 3).1 Pursuant to CPL §722.23[2], “Upon the arraignment of a defendant charged with a crime committed when he or she was sixteen or, commencing October first, two thousand nineteen, seventeen years of age on a violent felony defined in section 70.02 of the penal law…the court shall review the accusatory instrument and any other relevant facts for the purpose of making a determination pursuant to paragraph [c] of this subdivision.” Essentially, the court must remove the case to the family court unless the prosecutor can demonstrate a basis for not doing so, as enumerated in paragraph [c]. Both parties may be heard and submit information relevant to the court’s determination. There is a clear presumption of removal to family court for Adolescent Offenders. The court is required to order the action be removed to family court in accordance with subdivision one unless, after reviewing the papers and hearing from the parties, the court determines in writing that the district attorney proved by a preponderance of the evidence one or more of the following: “(i) the defendant caused significant physical injury to a person other than a participant in the offense…” CPL §722.23[2][c][i]. The indictment charges the defendant J.T. with Burglary in the Second Degree, in violation of the provisions of Section 140.25, Subdivision 1[b], of the Penal Law of the State of New York. The indictment specifically alleges that: “The said defendants, acting individually and in concert with each other and another, on or about the 6th day of December 2020, in the County of Orange, State of New York, did knowingly enter or remain unlawfully in a building, to wit: a structure located at 512 Route 9W, Town of Newburgh, with intent to commit a crime therein, and when effecting entry or while in the building or in immediate flight therefrom, did cause physical injury to a person who was not a participant in the crime, to wit: Brian P.”2 This Court has determined that the People have established, by a preponderance of the evidence, that the defendant J.T. “caused significant physical injury to a person other than a participant in the offense” (CPL §722.23[2][c][i]). This Court finds that based upon the totality of the circumstances regarding his accessorial conduct, J.T., through his actions, did cause significant physical injury to Brian Pajilla. The extreme and excessive nature of J.T.’s words and actions during the immediate flight, including throwing multiple large motorsport vehicles out the back of the van at police vehicles (striking one), while yelling at the operator of the getaway vehicle and directing him to “go, go, go” at a time when the vehicle was being operated at speeds in excess of 100 mph in 30 mph zones clearly establish that J.T. was acting with the state of mind required for the commission of that offense and that he played a pivotal role in the commission of that offense. J.T. solicited, requested, commanded, importuned, and intentionally aided Colon to commit the violent felony offense of Burglary in Second Degree, and a significant physical injury was caused to Brian Pajilla during the immediate flight therefrom. Mr. Pajilla sustained significant physical injury when the getaway vehicle, traveling at a high rate of speed, ran a steady red light and struck Mr. Pajilla’s Jeep. Mr. Pajilla’s Jeep was totaled and Mr. Pajilla sustained numerous injuries including a meniscus tear in his left knee and injuries to his back, shoulder, and head (see Grand Jury Minutes, pages 61-63). Mr. Pajilla has been unable to return to his job at FedEx since the date of the collision on December 6, 2020. Based upon these findings by the Court, pursuant to CPL §722.23[2][c], defendant J.T.’s top charge of Burglary in the Second Degree shall not be removed to the Family Court (see People v. A.T., 63 Misc.3d 336 [2019]; People v. Y.L., 64 Misc.3d 664 [2019]). The Court notes that technically the lesser charges against J.T. could be removed to the Family Court. Removal of such charges would not be in the interest of judicial economy and might result in conflicting outcomes. In addition, pursuant to CPL §722.23[1][d], the Court finds that extraordinary circumstances exist that prevent the transfer of this criminal action to the Family Court. As stated by the People, J.T. demonstrated “a reckless and depraved indifference for human life” by opening the rear doors to a van, which was traveling at almost 100 mph, and by throwing large motorsport vehicles directly at marked police cars simply to avoid arrest for a commercial burglary. This conduct happened not once, but in three instances over the course of several miles. Simply put, his wanton behavior could easily have killed someone. That someone could have been a police officer, a passing motorist, or a pedestrian walking on the road. His egregious conduct was exceptional and highly unusual. This is not the type of conduct police encounter regularly, or ever. Moreover, it is of little consequence that this defendant was not the operator of the van. He encouraged the driver to “go, go, go” and he was the one engaged in some of the most egregious conduct by throwing multiple large vehicles containing flammable liquids from the rear of the van onto the roadway into the path of travel of other automobiles (Affirmation of Chief Trial Assistant District Attorney Jason S. Rosenwasser, paragraph 17). J.T.’s criminal history includes the following arrests: 1) Theft of Services and Forgery, January 27, 2018, Essex County, N.J.; 2) Unlawful Possession of a Weapon, October 22, 2019, Essex County, N.J.; 3) Robbery, inflicts Bodily Injury and Conspiracy, March 10, 2020, Essex County, N.J.; and 4) Robbery inflicts Bodily Injury and Conspiracy, June 17, 2020, Essex County, N.J. In addition, it is uncontroverted that at the time of arraignment for the matter sub judice, the defendant J.T. was under the supervision of probation services out of Newark, New Jersey. Under the extraordinary circumstances presented herein, including the egregious and extremely dangerous conduct of J.T., removal to the Family Court is not appropriate. A transfer of the instant case to Family Court would erode public confidence in the criminal justice system. Accordingly, after considering J.T.’s individual behavior and conduct, the People’s motion to prevent removal of the pending criminal action must be granted (see, for e.g., People v. R.U., 70 Misc.3d 540 [2020]).3 The foregoing constitutes the Decision and Order of this Court. Dated: June 21, 2021
