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NY CPL Article 722: Raise the Age, Adolescent Offender & Extraordinary Circumstances

Raise the Age legislation, codified in part in CPL Article 722, has brought New York more in line with the majority of the nation in dealing with criminal charges and accusations against certain teenagers. The legislation was also largely a compromise between law enforcement and the proponents of these kinds of sweeping laws. The result, which sought to create a system where 16 and 17 year olds could still be prosecuted as adults in certain situations, is a complex system that leaves a healthy amount of grey area for juvenile and adolescent defense lawyers, courts and District Attorneys to interpret. Much of this is due to the creation of an entirely new class of offender – the “adolescent offender.” CPL 1.20(44) defines such a person as one charged with a felony committed on or after October 1, 2018 when he or she was sixteen years of age or on or after October 1, 2019, when he or she was seventeen years of age. When a person in this classification is charged with a felony, their case first goes to an adult Criminal Court where it remains, just as it always has, or, subject to various rules on removal out of the adult criminal justice system, to Family Court. These rules depend in large part on the particular crime with which the adolescent offender is charged as well as the facts and circumstances of the underlying conduct. Other rules aside, and the subject of this blog, if and when law enforcement can establish “extraordinary circumstances” as prescribed by CPL 722.23(1)(d), prosecutors can prevent a judge from transferring an adolescent offender’s case from an adult Criminal Court to a youth oriented Family Court thereby challenging the principles of treating children different than their adult counterparts.

One such case addressing “extraordinarily circumstances” in the context of an adolescent offender was recently litigated in December 2018. In People v. D.L., the defendant was charged with Attempted Second Degree Arson, Penal Law 110/150.15. As noted above, Raise the Age legislation provides that where the case has certain enumerated aggravating factors, the case is disqualified from removal to Family Court and instead will remain in the adult Criminal Court. However, even where there are no specific aggravating factors, the prosecution can make a motion for retaining the case in the adult criminal system under “extraordinary circumstances.”

The Assistant District Attorney argued that because the nature of the incident showed a callous disregard for life, the defendant was  deserving of adult prosecution. The factual allegations on which the prosecutor relied where that the defendant came over to the complainant’s home, rang the doorbell, and then ask to see the complainant’s son. In pertinent part, the defendant allegedly told the complainant that the she was going to burn her house down. The complainant closed the door and called 911. Shortly thereafter, a witness observed an individual, presumably the defendant, on the porch of the home setting a piece of furniture on fire. Fortunately, there was no damage to the house nor any person. In response, the defense contended that the young sixteen-year-old girl acted impulsively toward her former intimate partner and that the cushion that was set on fire was done so in plain view without any efforts to conceal it. Simply, this was not a real attempted to burn anything and, as the parties agreed, there were no injuries nor property damage.

Unfortunately, the Raise the Age statute contains no definition of “extraordinary circumstances” and because of the recency of the legislation there is little case law interpreting what might reach or go beyond this threshold. The court, in this case, looked to the legislative history and intent, including statements by the Chairperson of the Senate Codes Committee that this carve-out should be only for those extremely rare and exceptional cases. Another assemblyman was quoted as stating that this would be a “high standard for the DA to meet … transfer to Family Court should be denied only when highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the height and services in the Family Court.”

On these facts, the judge concluded that the alleged conduct did not amount to “exceptional circumstances” as set out in the relevant Raise the Age statute and the case went to Family Court over the People’s objection. While the above is merely one case and neither an appellate court nor the Court of Appeals, the guidance it provides, and recitation of legislative intent, is valuable nonetheless.

To learn more about Raise the Age, Adolescent Offenders, and the relationship between Family Court and Criminal Court, follow the provided links.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors representing adults, juveniles and adolescents in the Criminal and Family Courts.

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