Supreme Court, Richmond County, May 9, 2024

Scott Schwartz for defendant.

Michael E. McMahon, District Attorney (Alexis Argentine of counsel), for the People.

The pretrial motion of defendant K.S. is decided as follows:

Factual Allegations and Procedural History

The defendant was arrested on September 25, 2023, and charged as a juvenile offender with criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3), and other related charges, stemming from an incident occurring that same day in the vicinity of Cary Avenue and Taylor Street in Staten Island, New York.

At approximately 5:35 p.m. on the evening of September 25, 2023, members of the New York City Police Department received a radio run for an alleged physical fight involving teenagers at the above-mentioned location. After arriving on scene, officers allege they observed the imprint of a firearm in the front pocket of the defendant's sweatshirt. They subsequently approached the defendant and recovered a loaded 9 millimeter Glock semiautomatic pistol from inside the defendant's sweatshirt pocket.

Because of the defendant's age at the time of arrest and because said location is alleged [*2]to be within 1,000 feet of school grounds,^[FN1] the top charge of criminal possession of a weapon in the second degree, Penal Law § 265.03 (3), renders the defendant a juvenile offender.^[FN2] The defendant was arraigned by this court on September 26, 2023, and soon after indicted and arraigned on the indictment on October 6, 2023.

On November 16, 2023, defendant filed the instant motion asking the court to find that article 722 of the New York State Criminal Procedure Law, as applied to the defendant, charged as a juvenile offender, violates his right to equal protection of{**84 Misc 3d at 321} the laws under article I, § 11 of the New York State Constitution and the Fourteenth Amendment to the United States Constitution by not extending the same process of removal to the Family Court as extended to similarly situated adolescent offenders pursuant to CPL 722.23.

The People filed their opposition in response on November 27, 2023. The matter was ultimately scheduled for May 9, 2024, for decision.^[FN3]

Statutory Review

Enacted in 1978, New York's Juvenile Offender Law provides that all 13, 14, and 15 year olds accused of murder, as well as 14 and 15 year olds accused of rape, robbery, arson, [*3]burglary and other specified violent crimes, are prosecuted automatically in the adult criminal justice system.^[FN4] Removal to Family {**84 Misc 3d at 322}Court is possible if the court, after consideration of several enumerated factors, finds removal to be in the interests of justice. (See CPL 722.22 [1] [a].) Pursuant to CPL 722.22 (2), the court shall "examine individually and collectively" the following factors in making its determination:

"(a) the seriousness and circumstances of the offense;

"(b) the extent of harm caused by the offense;

"(c) the evidence of guilt, whether admissible or inadmissable at trial;

"(d) the history, character and condition of the defendant;

"(e) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

"(f) the impact of a removal of the case to the family court on the safety or welfare of the community;

"(g) the impact of a removal of the case to the family court upon the confidence of the public in the criminal justice system;

"(h) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and

"(i) any other relevant fact indicating that a judgment of conviction in the criminal court would serve no useful purpose."

However, pursuant to CPL 722.22 (1) (b), the consent of the district attorney is required to remove

"an action involving an indictment charging a juvenile offender with murder in the second degree as defined in section 125.25 of the penal law; rape in the first degree, as defined in subdivision one of{**84 Misc 3d at 323} section 130.35 of the penal law; criminal sexual act in the first degree, as defined in subdivision one of section 130.50 of the penal law; or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20 of this chapter, to the family court pursuant to the provisions of article seven hundred twenty-five of this title if the court finds one or more of the following factors: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in the proof of the crime, and, after consideration of the factors set forth in subdivision two of this section, the court determined that removal of the action to the family court would be in the interests of justice." (See id. [emphasis added].)

An armed felony is defined in relevant part as:

"any violent felony offense defined in section 70.02 of the penal law that includes as an element . . .

"(a) possession, being armed with or causing serious physical injury by means of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged." (See CPL 1.20 [41] [a].)

Here, defendant is charged with criminal possession of a weapon in the second degree, Penal Law § 265.03 (3), which qualifies as an armed felony. (See CPL 1.20 [41] [a]; Penal Law § 70.02 [1] [b].)

Although the Raise the Age legislation drastically changed the landscape of juvenile justice in New York State, it did not alter the definition of a juvenile offender or modify the process of removal of those cases to Family Court.

Prior to the implementation of Raise the Age, New York was one of only two states that held 16 year olds criminally responsible for their actions, regardless of the nature or severity of the crime charged. Except for youth charged as juvenile offenders, all others under the age of 16 who committed an act which if committed by an adult would constitute a crime were{**84 Misc 3d at 324} charged as juvenile delinquents.^[FN5] Unlike criminal court proceedings, juvenile delinquency proceedings strive to balance both the needs and safety of the community with the needs and best interests of the child. They are not punitive in nature, nor do they result in the negative stigma and collateral [*5]consequences that flow from a criminal conviction.

With the enactment of the Raise the Age legislation, the definition of a juvenile delinquent expanded to include all 16 and 17 year olds charged with misdemeanor offenses. The legislation also created a new classification—adolescent offenders—defined as any 16 or 17 year old charged with either a nonviolent or violent felony offense.^[FN6] In addition, the legislation established specialized court parts (Youth Parts) in the criminal term of the superior courts of New York State to have exclusive jurisdiction over both juvenile offenders and adolescent offenders.

A presumption of removal to Family Court exists for all adolescent offenders charged with nonviolent felony offenses, unless the People can demonstrate extraordinary circumstances that warrant the matter being retained in the Youth Part. (See CPL 722.23 [1].) Although there is no such presumption of removal for adolescent offenders charged with violent felony offenses, the legislation mandates judicial review of the accusatory instrument within six days of arraignment to determine whether one of the following factors exist: (i) the defendant caused significant physical injury to a person other than a participant in the offense; (ii) the defendant displayed a firearm, shotgun, rifle or deadly weapon in furtherance of such offense; or (iii) the defendant unlawfully engaged in certain sexual acts. (See CPL 722.23 [2] [c].) The People bear the burden of proving one or more of these factors by a preponderance of the evidence. If they fail to do so, they must overcome the presumption of removal to Family Court by demonstrating extraordinary circumstances that warrant retention in the Youth Part.{**84 Misc 3d at 325} (See CPL 722.23 [1].)^[FN7] Unlike adolescent offenders, juvenile offenders are not entitled to the same six-day statutory review process and are bound by the provisions of CPL 722.22.

The issue before the court is whether the different removal processes outlined above, specifically, the requirement of the District Attorney's consent to remove the juvenile offender defendant's case to Family Court violates the defendant's right to equal protection under the law since the adolescent offenders similarly charged would have the opportunity for removal without the District Attorney's consent.

Constitutional Analysis

The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution directs that no State shall "deny to any person within its jurisdiction the equal protection of the laws." (US Const, 14th Amend, § 1.) Furthermore, the New York State Constitution commands that "[n]o person shall be denied the equal protection of the laws of this [*6]state or any subdivision thereof." (NY Const, art I, § 11.) It is well-established that the Fourteenth Amendment's promise of equal protection guarantees equal laws but not necessarily equal results. (See Romer v Evans, 517 US 620, 631 [1996].)

The Court of Appeals noted in People v Foley (94 NY2d 668, 677 [2000]) "that an enactment of the Legislature, a coequal branch of government, is presumed to be valid, and that one seeking to invalidate a statute bears the heavy burden of showing that it is unconstitutional" (citing People v Bright, 71 NY2d 376, 382 [1988], and People v Davis, 43 NY2d 17, 30 [1977]). To prevail on a constitutional challenge, a defendant must demonstrate that the statute is unconstitutional beyond a reasonable doubt. (See People v Davis, 13 NY3d 17, 23 [2009]; People v Tichenor, 89 NY2d 769 [1997], cert denied 522 US 918 [1997]; People v Scalza, 76 NY2d 604, 607 [1990]; People v Pagnotta, 25 NY2d 333, 337 [1969].) Additionally, "[c]ourts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases involving life and liberty, and where the invalidity of the act is apparent on its face." (See McKinney's Cons Laws of NY, Book 1, Statutes § 150 [a], Comment.)

{**84 Misc 3d at 326}Since the defendant's constitutional challenge does not involve a suspect classification or a fundamental interest, it shall be reviewed and analyzed under a rational basis test which "requires that a governmental classification be based on some conceivable and valid state interest." (See People v Drayton, 39 NY2d 580, 585 [1976].) "The equal protection clause does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose." (See People v Walker, 81 NY2d 661, 668 [1993] [emphasis added], citing People v Parker, 41 NY2d 21, 25 [1976].)

Defendant's Argument

The crux of the defendant's constitutional challenge is that the requirement of the District Attorney's consent to remove the charge of criminal possession of a weapon in the second degree, Penal Law § 265.03 (3), when committed by a juvenile offender, but not an adolescent offender, lacks any legitimate State purpose and should be deemed unconstitutional. The defendant contends that such a requirement deprives him of the same review process afforded older youth (i.e. adolescent offenders) arrested and charged with the same offense. This, he argues, leads to disparate treatment and outcomes, often resulting in younger defendants being treated more harshly than their older counterparts accused of committing the exact same offense—specifically, as alleged here, possession of a loaded firearm within 1,000 feet of school grounds.

Although cases involving juvenile and adolescent offenders both commence in the Youth Part, the burden to retain the adolescent offender's case in the adult court rests with the District Attorney's Office. Adolescent offenders charged with violent felony offenses, such as the crime alleged here, are entitled to what is commonly referred to as the six-day review whereupon the District Attorney bears the burden of proving one of three enumerated factors to retain the case in the Youth Part. (See CPL 722.23 [2] [c].) If unsuccessful, the prosecutor can still seek to retain the matter in the Youth Part by demonstrating that extraordinary [*7]circumstances exist that warrant retention. In contrast, this defendant, charged as a juvenile offender, is not afforded the six-day review and can only have his case removed to Family Court if the District Attorney consents to such removal, given the offense alleged is an armed felony. Thus, an adolescent offender charged with the same offense{**84 Misc 3d at 327} would have the right to a six-day review and the presumption of removal if the People failed to meet their burden. In the instant case, the People are not alleging that the juvenile offender defendant displayed the gun in any way, nor are they alleging he caused significant physical injury or committed a sex crime. Therefore, it is likely, given these facts, that if the defendant were an adolescent offender, pursuant to CPL 722.23, the People would need to establish extraordinary circumstances to retain the matter in the adult court. However, since the defendant is a juvenile offender, his case will not be removed unless he obtains the District Attorney's consent. It is this disparity that the defendant challenges as a violation of his right to equal protection under the law.

The defendant is asking this court to find that such disparate treatment, as applied to him in this instance, is unconstitutional as it serves no legitimate State purpose. The defendant requests this court to apply the statutory framework created for adolescent offenders in CPL 722.23 when determining whether removal to Family Court is appropriate in his case.

Prosecution's Argument

The People oppose the defendant's motion on the grounds that article 722 of the CPL does not deny juvenile offenders equal protection under the law, nor does it deny this defendant equal protection under the law as applied to him, and that even if the court analyzed this matter pursuant to the procedures set forth in CPL 722.23, as requested by the defendant, removal would still be inappropriate.

It is not disputed by either side that when the Legislature created the category of adolescent offenders, rather than adopting the existing removal procedures for juvenile offenders, they established a completely new review and removal process. Although the People acknowledge that different processes exist between the two categories of cases, they contend the differences are not unconstitutional or lacking in equal protection.

The People correctly highlight that, by definition, juvenile offenders are only charged with committing violent felony offenses. Therefore, any comparison of the statutes should focus on the removal process outlined for adolescent offenders charged with violent felonies pursuant to CPL 722.23 (2) and those existing processes for juvenile offenders pursuant to CPL 722.22 (1) (a) and (b) and (2).{**84 Misc 3d at 328}

It is the People's position that the defendant has failed to demonstrate the different processes are irrational or serve no legitimate State purpose. In fact, they argue that juvenile offenders are at an advantage over adolescent offenders when it comes to the removal process. For example, they highlight how most juvenile offenders can seek removal based solely upon the interests of justice, whereas adolescent offenders are bound by the statutory review process and have no such recourse. If, for example, the People prevail at the six-day review and establish one of the three necessary prongs to retain the matter in the Youth Part or, if they fail to do so, but subsequently demonstrate extraordinary circumstances that warrant retention in the Youth [*8]Part, adolescent offenders are bound by that decision and cannot move the court to consider removal in the interests of justice.

The People do acknowledge, however, there is a small subset of juvenile offenders that require the District Attorney's consent prior to removal, i.e., armed felonies, as alleged in the case before the court. They argue though, that "in comparison to the procedural path of removal an Adolescent Offender case takes, these cases would always remain in the Youth Part even [when] analyzed under CPL § 722.23, as they either meet one of the necessary criteria set forth in CPL § 722.23 or there would be extraordinary circumstances." (See People's affirmation in opp at 14-15, Nov. 27, 2023 [emphasis added].)

Although there is no element of display alleged in the case before the court, the People argue that should the court analyze removal under the criteria set forth for adolescent offenders, as requested by the defendant, the court would find extraordinary circumstances given the alleged possession of the firearm on school grounds and retain the matter in the Youth Part. Since the People strongly believe that regardless of the procedure, the same outcome will occur—that being the defendant's case remaining in the Youth Part, there is no violation of the defendant's right to equal protection under the law.

Discussion

A review of the New York State Assembly Record of Proceedings prior to the vote on the Raise the Age legislation in 2017 reveals there was very little mention of juvenile offenders, other than to say those laws would remain unchanged, and no discussion as to the different statutory scheme devised for removal{**84 Misc 3d at 329} of the older adolescents' cases to Family Court.^[FN8] What the Assembly Record does reveal is that the legislators discussed having the "overwhelming bulk of the cases . . . be promptly transferred from the adult court to the family court." (See NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017 at 37.) The requirement of extraordinary circumstances for nonviolent felonies or violent felonies when one of the three enumerated prongs was not met was designed "to create this type of presumption where only one out of 1,000 cases . . . those extremely rare and exceptional cases, would remain in the youth part." (Id. at 37-38.) In addition, extraordinary circumstances was envisioned as a "high standard" for the prosecutor to sustain and that "denials of transfer to the family court should be extremely rare . . . [and] should be denied only when highly unusual and heinous facts are proven and there is . . . strong proof that the young person is not amenable . . . [to] services in the family court." (Id. at 39 [emphasis added].)

Findings

After a significant amount of consideration, deliberation, and statutory and constitutional review, this court cannot find a rational basis for the disparate treatment of the defendant, a 15 [*9]year old, charged as a juvenile offender with criminal possession of a weapon in the second degree on school grounds, compared to an adolescent offender charged with the identical offense. Without the District Attorney's consent, the juvenile offender faces prosecution in the adult court, the stigma of a criminal conviction and the collateral consequences that flow therefrom. In contrast, his 16- or 17-year-old counterpart, charged as an adolescent offender, with the exact same charge will be granted removal if the People fail to meet their statutory burden of retaining the case in the adult court.

This court acknowledges that the juvenile offender statutory framework provides a mechanism for removal to Family Court. While the processes set forth in CPL 722.22 may differ than those afforded adolescent offenders under CPL 722.23, they are not per se unconstitutional. As stated earlier, equal protection under the law does not require the exact same procedures or outcomes; however, the legislative classification must be rationally related to a legitimate State purpose. (See People v{**84 Misc 3d at 330}Walker, 81 NY2d 661, 668 [1993], citing People v Parker, 41 NY2d 21, 25 [1976].)

This court does not dispute the serious nature of the alleged offense in the instant indictment. However, this court must scrutinize the disparity of treatment between the two classifications when applied to this juvenile offender defendant, charged with Penal Law § 265.03 (3), an armed felony offense, which may only be removed on consent of the District Attorney pursuant to CPL 722.22 (1) (b). This statutory scheme stands in stark contrast to the procedural path the defendant would face had he been one year older and charged as an adolescent offender. On their face, the facts presented to this court thus far regarding the defendant's alleged possession of a loaded firearm on school grounds would not be sufficient to survive a six-day review if he were an adolescent offender.

It follows that, in the adolescent offender context, while the People would still have the opportunity to file a motion to prevent removal despite failing a six-day review, the defendant would not need their consent for removal. Rather, the decision would be left to the discretion of the court. This procedural framework is more closely aligned with that imposed on juvenile offenders charged outside of the CPL 722.22 (1) (b) constraints requiring the District Attorney's consent, where the court can make an independent determination as to whether removal is in the interests of justice. The court acknowledges that the District Attorney's consent may be appropriate for many of the charges enumerated in section 722.22 (1) (b). However, with respect to those juvenile offenders facing a top count of Penal Law § 265.03 (3), the court cannot envision any conceivable State interest nor any legitimate purpose for the defendant, charged as a juvenile offender, to face greater constraints seeking removal than those imposed upon an older adolescent offender facing that precise same charge.

Based upon the above findings, CPL 722.22 (1) (b) as applied to K.S. being charged as a juvenile offender with Penal Law § 265.03 (3) violates his right to equal protection of the laws under article I, § 11 of the New York State Constitution and the Fourteenth Amendment to the United States Constitution. Therefore, this court is striking that portion of CPL 722.22 (1) (b) that requires the consent of the District Attorney in this case. Furthermore, that portion of the defendant's application urging the court to apply the statutory framework set forth in{**84 Misc 3d at 331} CPL 722.23 is denied. The defendant, however, may seek removal pursuant to the [*10]remaining provisions of CPL 722.22.

"(a) in or on or within any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school, or (b) any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school . . . . For the purposes of this section an 'area accessible to the public' shall mean sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants." (See Penal Law § 220.00 [14].)

"(1) a person thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 . . . or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; and

"(2) a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) . . . or section 265.03 . . . where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter; or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law." (See Penal Law § 10.00 [18] [emphasis added].)