The following papers were read on this motion: People’s Affirmation and Memorandum of Law Opposing Removal 1 Adolescent Offender B.T.’s Memorandum of Law and Affidavit In Opposition to People’s Motion Opposing Removal 2 Adolescent Offender D.W.’s Affirmation In Opposition to People’s Motion Opposing Removal 3 Adolescent Offender N.O. Affirmation In Opposition to People’s Motion Opposing Removal 4 Adolescent Offender ["AO"] D.W. [D.O.B. 00/00/0000] ["AO W."] is charged with one count of Robbery in the First Degree [Penal Law §160.15(4)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law §265.09(1)(b)]; and one count of Conspiracy in the Fourth Degree [Penal Law §105.10(1)]. His co-defendant, AO N.O. [D.O.B. 0/00/0000] ["AO O."], is charged with one count of Robbery in the First Degree [Penal Law §160.15(4)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law §265.09(1)(b)]; one count of Criminal Possession of a Weapon in the Second Degree [Penal Law §265.03(1)(b)]; one count of Conspiracy in the Fourth Degree [Penal Law §105.10(1)]; and one count of Reckless Endangerment in the Second Degree [Penal Law §120.20]. Their co-defendant, AO B.T. [D.O.B. 0/0/0000] ["AO T."], is charged with one count of Robbery in the First Degree [Penal Law §160.15(4)]; one count of Criminal Use of a Firearm in the First Degree [Penal Law §265.09(1)(b)]; one count of Criminal Possession of a Weapon in the Second Degree [Penal Law §265.03(1)(b)]; and one count of Conspiracy in the Fourth Degree [Penal Law §105.10(1)]. The People have filed a motion pursuant to CPL §722.23[1][b], opposing removal of the three co-defendants’ respective cases to the Family Court based on the existence of “extraordinary circumstances”. The AOs have each filed opposition papers to the People’s motion and the People have not filed any reply papers in further support thereof. The People’s Motion Opposing Removal is determined as follows: The charges filed against each AO arise from an incident alleged to have occurred on November 5, 2021, at about 8:09 PM, in East G.C., Nassau County, New York. It is alleged that on that date and at that time, AO O. and AO T., while acting in concert and having no permission to do so, displayed a loaded handgun containing five (5) rounds and pointed said handgun at the victims. It is further alleged that AO O. and AO T. then both entered the victims’ vehicle and fled the scene. AO O. then allegedly drove the vehicle and, while traveling at a high rate of speed, exited the parking lot in the wrong direction on a one-way road, fled the police, and after failing to stop, ultimately crashed the vehicle through a guard rail and into the brush alongside the M.Parkway, all of which created a substantial risk of serious physical injury to other drivers on the road. It is further alleged that while present at the Third Precinct, AO T. provided Detective K. with consent to search his cellphone, which contained messages detailing the plan to carry out the robbery that took place. It is alleged that AO W. was part of the planning and carrying out of the robbery and had been present at the robbery as well. AO N. and AO T. were arrested in connection with these charges on November 5, 2021. AO W. was arrested on November 6, 2021. All three AOs were arraigned by Accessible Magistrate on November 6, 2021 and their respective matters were all adjourned to the Youth Part of the County Court to be heard on November 8, 2021. The matters were each scheduled for a statutory Sixth Day Appearance; however, the People subsequently waived such statutory review of the respective accusatory instruments and the parties all agreed and consented to the Court basing its determination of whether to remove each case to the Family Court on the People’s filing of a Motion Opposing Removal pursuant to CPL §722.23[1][b]. The People’s Motion Opposing Removal consists of the sworn affirmation of Assistant District Attorney Salima Labib, Esq., with accompanying Memorandum of Law and supporting exhibits appended thereto. The People argue that extraordinary circumstances exist which warrant retaining the matters of AO T. and AO O. in the Youth Part, in that one of them displayed a firearm and they acted with a “community of purpose” to rob the victims at gunpoint. (People’s Memorandum of Law dated November 28, 2021 ["People's Memo of Law"], p. 6). They further argue that both of these AOs subsequently got into the victims’ car and drove off, and that when the car ultimately crashed, they both fled the vehicle, displaying a consciousness of guilt. (People’s Memo of Law, p. 6). They argue that the bag that was seen being tossed from the fleeing vehicle was recovered, and it contained a loaded and operable firearm. (People’s Memo of Law, p. 6). They further argue that extraordinary circumstances also exist as to AO W. which warrant retaining his case in the Youth Part, as he was the “ringleader” of the three AOs, in that he organized and orchestrated the attack. (People’s Memo of Law, p. 6). They further argue that AO W. then lied to the police about his involvement in the robbery and gave them a statement which made them believe that he was a victim. (People’s Memo of Law, p. 8). They further argue that AO W. has a matter involving a firearm pending in Brooklyn Family Court and the fact that he is repeatedly being arrested for matters involving firearms should be considered an “extraordinary circumstance” to retain the matter in the Youth Part. The People argue that they are not in possession of any mitigating circumstances that could be used to support removal of the AOs’ respective cases to the Family Court. (People’s Memo of Law, p. 10). AO T.’S OPPOSITION TO THE PEOPLE’S MOTION Counsel for AO T. opposes the People’s Motion and argues that the People have failed to provide a basis for finding that extraordinary circumstances exist as to AO T. in that “the conduct alleged does not rise to the level of ‘highly unusual and heinous facts’ warranting the denial of removal to the Family Court”. (Memorandum of Law in Opposition to People’s Motion to Prevent the Removal of this Action to Family Court by Keith White, PLLC, counsel for B.T., dated December 5, 2021 ["AO T. MOL in Opposition"], p. 4). Counsel for T. further argues that none of the documents and/or statements proffered by the People in support of their Motion for Extraordinary Circumstances allege that this AO displayed a firearm or weapon. (AO T. MOL in Opposition, p. 5). Counsel further argues that the People’s “community of purpose” argument cannot be used to prevent AO T.’s case from being removed to the Family Court. AO T.’s counsel further argues that the People have failed to overcome the “very high bar” to prove extraordinary circumstances, in that the People have not alleged that the AO committed a sexual act or caused any of the complainants to sustain any physical injuries; additionally, the People have failed to prove that the AO displayed an actual “firearm” or “deadly weapon” in his alleged commission of the criminal act. (AO T. MOL in Opposition, p. 9). Finally, AO T.’s attorney asserts that mitigating circumstances exist which support removal of this AO’s case to the Family Court and cites to the supporting affidavit of AO T.’s mother, in which she affirms that in 2019 she was diagnosed with Breast Cancer and that she was required to undergo intense chemotherapy treatments, which placed the AO and the rest of her family under extreme physical, social, emotional, and financial stress. (Affirmation of A.D., dated December 2, 2021 [D. Aff.],
5 and 6). She further affirms that while her family was suffering from such stress arising from her Breast Cancer diagnosis, the AO’s grades began to fall, and he began to rebel and miss school. (D. Aff., 6). AO O.’S OPPOSITION TO THE PEOPLE’S MOTION Counsel for AO O. also argues that the People have failed to prove extraordinary circumstances exist as to his client. (Affirmation in Opposition to People’s §722.23[1][d] Motion for Extraordinary Circumstances by Donald Rollock, Esq., dated November 30, 2021 ["Rollock Aff. in Opposition"], 4). AO O.’s counsel further argues that, viewing the facts in the light most favorable to the People, they have merely proved that a robbery occurred, and that codefendant AO W. was the “mastermind of this poorly planned and stupid robbery”. (Rollock Aff. in Opposition, 6). AO O.’s counsel cites to People’s Ex. 4, which is AO T.’s Statement of Admission, in which AO T. stated that “weren’t gonna shoot anyone” with the gun and, according to AO O.’s counsel, admitted to throwing the gun out of the window of the vehicle when the police were in pursuit. (Rollock Aff. in Opposition, 9). Counsel for AO O. further argues that, according to the vehicle’s occupants, only a cell phone was taken from any of the complainants and none of the complainants were injured. (Rollock Aff. in Opposition, 10). Counsel for AO O. emphasizes that the allegations amount only to the alleged “display” of a firearm, as there are no allegations that the firearm was pointed at someone. (Rollock Aff. in Opposition, 10). Counsel for AO O. also argues that the People have failed to put forth any evidence showing that his client is not redeemable or would not benefit from the heightened services offered in the Family Court. (Rollock Aff. in Opposition, 23). AO W.’S OPPOSITION TO THE PEOPLE’S MOTION Counsel for AO W. also opposes the People’s Motion for Extraordinary Circumstances and argues that FCA §381.2(1) prohibits the Court from using AO W.’s pending Family Court case against the AO or his interests. (Affirmation in Opposition to People’s §722.23(1)(d) Motion for Extraordinary Circumstances by Melvyn K. Roth, Esq., dated December 2, 2021 ["Roth Aff. in Opp. To People's Motion], 5). Counsel for AO W. argues that his client did not possess or display a firearm, nor did he cause anyone to sustain any injuries. (Roth Aff. in Opp. To People’s Motion, 7). AO W.’s counsel further argues that the People face a “very high bar” in opposing the removal of an AO’s case to the Family Court and cite to Assembly Members’ stated intention that only “one in 1,000 [cases] would be kept by the Criminal Court and the others would” be removed to the Family Court. (Roth Aff. in Opp. To People’s Motion, 9). Counsel for AO W. cited to a Certificate from Lutheran Social Services of New York, attached as Exhibit A to his Affirmation, which counsel asserts demonstrates that his client is worthy of having his case removed from the Youth Part to the Family Court. (Roth Aff. in Opp. To People’s Motion, 11). FINDINGS OF FACT According to the respective Felony Complaints, on or about November 5, 2021, at about 8:09 PM at 000 O.C. Rd, E. G.C., Nassau County, New York, AO O. and AO T., while acting in concert and having no permission to do so, displayed a loaded handgun containing five (5) rounds, and pointed said handgun at the victims. It is further alleged that AO O. and AO T. then entered the victims’ vehicle and fled the scene. AO O. then allegedly drove the vehicle and, while traveling at a high rate of speed, exited the parking lot in the wrong direction on a one-way road, fled the police, and after failing to stop, ultimately crashed the vehicle through a guard rail and into the brush alongside the M. Parkway, all of which created a substantial risk of serious physical injury to other drivers on the road. It is further alleged that while present at the Third Precinct, AO T. provided Detective K. with consent to search his cellphone, which contained messages detailing the plan to carry out the robbery that took place. It is alleged that AO W. was part of the planning and carrying out of the robbery and had been present at the robbery as well. It is further alleged in the People’s Motion papers that on November 5, 2021, at 000 O.C. Road in G.C., Nassau County, New York, AO W. was driving a 2020 Blue BMW 330i, New Jersey registration XXXXXX. (Affirmation of Assistant District Attorney Salima Labeb, Esq., dated November 28, 2021 ["Labeb Aff. in Support of Motion"], 3 [citing to Exhibit 1 thereto]. It is further alleged that K. F. ["F."], E.M. ["M"], J.K. ["K."], and T.E. ["E."] were also in the vehicle. (Labeb Aff. in Support of Motion, 4 [citing to Exhibit 2 thereto]). It is further alleged that the vehicle had been rented by F.’s friend and that F. had permission to drive it. (Labeb Aff. in Support of Motion, 5). The People further allege that a few days before November 5, 2021, AO W. asked F. about the vehicle and F. told AO W. that he would drive out to Long Island where AO W. lived so that he could see it. (Labeb Aff. in Support of Motion, 6 [citing to Exhibit 2 thereto]). The People further allege in their Extraordinary Circumstances Motion that AO W. communicated with AO T. and AO O. about the BMW and they made an agreement to steal it. (Labeb Aff. in Support of Motion, 7 [citing to Exhibit 3, copies of text messages between the parties, and Exhibit 4, AO T.'s written Statement of Admission dated November 6, 2021]). The People quoted portions of the parties’ alleged text message communications in which they discussed whether AOs N. and T. would travel from Brooklyn to Long Island in an Uber and what they planned to wear for the forthcoming robbery. (Labeb Aff. in Support of Motion, 8). The People further allege in their motion that on November 5, 2021, AO W. met with F., K., M, and E. F. allegedly let AO W. drive the BMW to 630 O. C. Road, which is the R.F. Mall in G. C. and they arrived there at approximately 8:00 PM. (Labeb Aff. in Support of Motion, 10 [citing to Exhibit 2 thereto]). AO W. allegedly drove around the parking lot twice and then parked the car and the occupants immediately exited the car, except for F. who was slower to exit because he was sitting in the middle of the rear seat. (Labeb Aff. in Support of Motion,
