People v. C.J., 2021-51227

CourtNew York County Court
Writing for the CourtHON. CONRAD D. SINGER, A.J.S.C.
Decision Date07 December 2021
PartiesThe People of the State of New York, v. C.J., Adolescent Offender.
Docket Number2021-51227,Index FYC-00000-00

The People of the State of New York,

C.J., Adolescent Offender.

No. 2021-51227

Index No. FYC-00000-00

County Court, Nassau County

December 7, 2021

Unpublished Opinion

N. Scott Banks, Attorney in Chief, Legal Aid Society of Nassau County,

Taryn Shechter, Esq.

Acting Nassau County District Attorney, Joyce A. Smith

Rivka Shuter, District Attorney Law Assistant


The following papers were read on this motion:

People's Affirmation and Memorandum of Law Opposing Removal 1

Adolescent Offender's Opposition to People's Motion Opposing Removal 2

The Adolescent Offender ("AO"), C.J. [D.O.B. 0/00/0000], is charged with one count of Criminal Possession of a Weapon in the Second Degree [Penal Law § 265.03(3)]; one count of Criminal Possession of a Weapon in the Third Degree: Ammunition Feeding Device [Penal Law § 265.02(8)]; and one count of Criminal Possession of a Weapon in the Third Degree: Assault Weapon. The People have filed a motion pursuant to CPL § 722.23[1][b], opposing removal of the AO's case to the Family Court based on the existence of "extraordinary circumstances". The AO filed opposition papers to the People's motion and the People have not filed any reply papers in further support of their motion. The People's Motion Opposing Removal is determined as follows:

The charges filed against the AO arise from an incident alleged to have occurred on October 21, 2021, at about 7:20 PM, in H., Nassau County, New York. It is alleged that on that date and at that time, Nassau County Probation Officers responded to the AO's home to do a probation check, at which time the AO was found to be in possession of a loaded Ruger.22 Charger pistol, serial No. 000-00000. The gun is alleged to have had a high capacity 15 (fifteen) round magazine inserted into it, which was loaded with 14 (fourteen).22 caliber rounds and 1 (one) round in the chamber. The firearm is allegedly considered to be a pistol that has the capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip. This feature classifies such weapon as an assault weapon. It is further alleged that while searching the AO's room, Probation Officers Vasquez and Quinones located the firearm in a blue bin located next to the AO's bed. The AO is the sole occupant of the bedroom in which the gun was allegedly found.

The AO was arrested in connection with these charges on October 21, 2021. He was arraigned in the Youth Part of the County Court on October 22, 2021, and the matter was scheduled for a statutory Sixth Day Appearance, to take place on October 27, 2021. At that appearance, the People waived the statutory Sixth Day Appearance and the parties agreed and consented to the Court basing its determination of whether to remove the 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 Law Assistant Rivka Shuter, practicing pursuant to an order of the New York State Appellate Division, Second Department, with accompanying Memorandum of Law and supporting exhibits appended thereto. The People argue that this AO's case should be retained in the Youth Part because there are extraordinary circumstances in this case, in that: 1) the AO was allegedly on probation for possession of a weapon following a case that began in the Youth Part; 2) the AO was allegedly found in possession of the loaded firearm 7 days after being placed on probation out of family court for possession of a weapon; 3) the weapon that was allegedly recovered was an assault weapon; 4) upon information and belief, a young child lives in the house where the AO possessed an unsecured assault weapon; 5) the totality of the circumstances warrant keeping this case in the Youth Part; and 6) no mitigating circumstances exist which would weigh against retaining the case in the Youth Part.

The People's motion includes a supporting deposition from Probation Officer ["PO"] Maria Vazquez of the Nassau County Probation Department, in which PO Vazquez affirms that on the subject date and at the subject location, she was doing a routine search with PO Murray and PO Quinones and with his mother's permission, they went into the AO's bedroom. (Affirmation of Rivka Shuter in Support of People's Motion, dated November 9, 2021 ["Shuter Aff. in Support of People's Motion"], ¶6, Ex. 4 thereto).

PO Vazquez further affirms that while in the AO's bedroom, PO Vazquez searched his bed and two storage bins; that she opened one of the bins and saw what appeared to be a black firearm. (Shuter Aff. in Support of People's Motion, ¶6, Ex. 4 thereto). PO Vazquez called to the other officers because she was not sure it was a firearm; PO Murray removed the magazine out from the loaded gun; they observed that there was one round that was stuck in the chamber. (Shuter Aff. in Support of People's Motion, ¶6, Ex. 4 thereto). They called the H. Police Department, and the AO was arrested. (Shuter Aff. in Support of People's Motion, ¶6, Ex. 4 thereto). The People's motion also includes photographs of the alleged firearm and photographs depicting the AO's alleged room. (People's Memorandum of Law in Support of Motion ["People's Memo of Law"], p. 8, Ex. 5 thereto).

Defense counsel argues in opposition to the People's Extraordinary Circumstances Motion that the People's Motion Opposing Removal should be denied because: 1) The People failed to prove extraordinary circumstances as they have failed to prove any "highly unusual and heinous facts" which warrant retaining the case in the Youth Part; 2) the People have offered no proof that there is "no possible benefit" to the AO having his case heard in the Family Court, or that...

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