Docket No. FYC-71253-26 · Sheralyn Pulver, J.
The People of the State of New York v A.D., As an Adolescent Offender, Defendant
Westchester County District Attorney's Office (by Assistant District Attorney Alexander B. Shapiro) for the People.
Christina T. Hall, Esq. for the Defendant.
A.D., with a birth date of xx/xx/2009, is charged as an Adolescent Offender (“AO”), by felony complaint, with one count of criminal possession of a weapon in the second degree (Penal Law [“PL”] § 265.03) and one count of criminal possession of a weapon in the third degree (PL § 265.02[8]). The defendant was arraigned before this Court and pled not guilty to the charges on May 29, 2026.
On June 30, 2026, the People filed the instant motion to prevent removal of this action to Family Court, pursuant to Criminal Procedure Law (“CPL”) § 722.23(1). On July 24, 2026, the defendant submitted papers in opposition to the People's motion. Based upon the evidence presented and the arguments advanced by both parties, the Court makes the following findings of fact and conclusions of law.1
Findings of Fact
The felony complaint alleges that at approximately 12:48 AM on May 28, 2026, in the vicinity of Elm Street in the City of Yonkers:
The defendant(s) at the above date, time and place, while aiding, abetting, and acting in concert with five accomplices, did possess any loaded firearm and said possession did not take place in the home or place of business, and did possess a large capacity ammunition feeding device when the defendant was found to be in possession of one (1) ghost gun which had a black handle, a silver/grey slide, and a gold barrel and which contained no serial number but was loaded with fifteen (15) rounds of 9mm caliber ammunition, in the magazine attached to said ghost gun which was found within a backpack located inside of a 2023 Yellow Suburban Lamborghini [ ] that the defendant was found occupying at the time the above referenced firearm was located. In addition, said magazine is a large capacity ammunition feeding device as it was capable of holding the aforementioned fifteen (15) rounds. Finally, the possession of the above referenced loaded firearm did not take place in the defendant's home or place of business. The defendant fled the location of the recovered firearm prior to the firearm being located, but was identified after the incident by a Yonkers Police Officer witness in an identification procedure.
(Ex. 1 to Affirmation of Assistant District Attorney Alexander B. Shapiro [“Shapiro Aff.”]).
The supporting affidavits of Police Officer Keith Defino, Detective John Liberatore, and Detective Dylan Deierlein of the City of Yonkers Police Department (Exs. 2-4 to Shapiro Aff.) establish the following facts:
Police Officer Defino observed a yellow Lamborghini Urus being driven without a front license plate and conducted a traffic stop of the vehicle. Six young men, including the driver, were inside of the vehicle, and none of the four rear passengers was wearing a seatbelt. Police Officer Defino asked all the occupants for identification for the purpose of issuing appropriate traffic summonses. A.D., a known member of the “Mak Ballas” gang, was identified as one of the passengers in the middle rear seat. As neither the driver nor any of the passengers could provide a driver's license, Police Officer Defino asked all of the occupants to exit the vehicle.
Upon asking the driver if he had any weapons on him, Police Officer Defino observed A.D. and another passenger make furtive movements and attempt to block his view of a green camouflage backpack on the rear passenger side floor. Police Officer Defino then conducted an inventory search of the vehicle, including the aforementioned backpack on the rear floor, and believed the backpack contained a firearm due to the manner in which a weighted object therein caused the backpack to swing forward. Police Officer Defino found a loaded black semiautomatic pistol with a gold-colored barrel in the backpack. While the occupants were outside the vehicle, A.D. fled the scene on foot. A.D. was arrested the following day. The recovered firearm was tested and found to be operable (see Ex. 5 to Shapiro Aff.).
During his investigation of the incident, Detective Liberatore observed surveillance video from shortly before the incident that appeared to show A.D. exit the subject vehicle, enter an apartment building on Elm Street, and then return to the vehicle shortly thereafter carrying a green camouflage backpack. A.D. got back inside, and the vehicle left the location at approximately 12:47 AM. Additionally, Detective Liberatore viewed a rap music video posted on Instagram in which he allegedly observed A.D. brandish what appeared to be a black firearm with a gold-colored barrel.2
Conclusions of Law
Except in cases where an AO is charged with a class A non-drug felony or a violent felony offense and the People have proven one or more of the aggravating factors set forth in CPL § 722.23(2)(c), actions against an AO that originate in the Youth Part are presumptively removeable to Family Court. In this case, A.D. is charged with criminal possession of a weapon in the second and third degrees, both of which are violent felony offenses (see PL § 70.02[1]); however, the People declined to offer evidence at a retention hearing to prove any of the aggravating factors set forth in CPL § 722.23(2)(c). Therefore, this action is presumptively removeable, as described further below.
Pursuant to CPL § 722.23(1)(a), the Court must order the action removed to Family Court unless the People make a timely motion to prevent removal. Such a motion must be in writing upon notice to the defendant and must contain allegations of sworn fact based upon personal knowledge of the affiant (see CPL § 722.23[1][a], [b]). “The court shall deny the motion to prevent removal of the action in youth part unless the court makes a determination upon such motion by the district attorney that extraordinary circumstancesexist that should prevent the transfer of the action to family court” (CPL § 722.23[1][d] [emphasis added]).
The term “extraordinary circumstances,” in the context of a motion to prevent removal, was not defined in the Raise the Age legislation. The Court of Appeals has recognized that the absence of a statutory definition evinces a legislative intent to entrust courts to exercise their broad discretion to determine whether extraordinary circumstances exist such that an action should not be removed (see People v Guerrero, — NY3d —, 2026 NY Slip Op 00826, *3 [2026]). Such an analysis must involve a weighing of aggravating factors and mitigating circumstances that may exist in a given case (see id., citing NY Assembly Debate on 2017 NY Assembly Bill A3009C, April 8, 2017 [“Assembly Debate”], at 21, 39). That said, the Legislature intended that only “extremely rare and exceptional cases” would remain in the Youth Part, which are those that involve “highly unusual and heinous facts” and “a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court” (see People v Lloyd F., 245 AD3d 69, 75-76 [2d Dept 2025], quoting Assembly Debate at 38-39).
“To determine whether a case qualifies as exceptional, we look for aggravating factors that demonstrate a degree of cruelty, heinousness, or recidivism suggesting that an adolescent offender's conduct is not simply the result of youthful impulsivity or an inability to control their environment” (id., citing Assembly Debate at 39-40). Examples of such aggravating factors include “proof of a series of serious crimes committed by the [AO] over the course of many days, that the AO acted “in an especially cruel and heinous manner,” or that the AO was “a ringleader who threatened and coerced reluctant youths to participate in the crimes” (id., quoting Assembly Debate at 40). Mitigating circumstances against which such aggravating factors should be balanced include “economic difficulties, substandard housing, poverty, learning difficulties and educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavioral role models, abuse of alcohol or controlled substances by the [AO], by family or by peers” (id.).
The Legislature did not establish how the People's burden should be measured on a motion to prevent removal based upon “extraordinary circumstances,” and there is no binding authority setting forth a standard. At least one court has determined that the People's burden is measured by a preponderance of the evidence, which is the same standard that the People initially have at a retention hearing under CPL § 722.23(2)(c) (see People v W.H., 69 Misc 3d 278, 282 [Sup Ct, Kings County 2020]). However, the defendant argues, relying on People v J.J., 74 Misc 3d 1223(A), 2022 NY Slip Op 50211(U) (Ulster County Ct 2022), that the standard should be measured by “clear and convincing evidence.” The court in J.J. stated that “[s]ince the initial burden of proof on the People is a mere preponderance of the evidence, an additional quantum of proof is necessary to rebut the statutory presumption [of removal]. Logically, then, the burden of proof on this type of motion must be something more than a mere preponderance. It should be closer to or resemble ‘clear and convincing evidence’” (id. at *3). This Court agrees with the reasoning of J.J. that the People's burden on the instant motion is higher than a mere preponderance of the evidence.
The Court finds that the People have failed to meet their burden of demonstrating the existence of extraordinary circumstances sufficient to prevent removal of this action to Family Court. While any case involving alleged illegal firearm possession is very serious, the Court has not been presented with any “highly unusual and heinous facts” nor evidence that A.D. acted in an especially cruel or heinous manner or coerced anyone to participate in criminal activity (see Lloyd F., 245 AD3d at 76).
The Court disagrees with the People's argument that A.D.'s conduct is analogous to that of the defendant in People v R.U., 70 Misc 3d 540 (Nassau County Ct 2020). In R.U., the defendant was charged with attempted murder in the second degree and firearms offenses for allegedly orchestrating a planned murder of three victims, and his codefendant fired several shots in the proximity of the victims' home (see id. at 541, 548). That is a far cry from the instant matter, in which there is no allegation that the subject firearm was brandished or used in connection with the charged incident. The People allege only that A.D. brandished a similar looking handgun on some unspecified date in a music video posted to Instagram.3
Nor is there any allegation here that A.D. acted as any sort of “ringleader.” The mere allegation that A.D. is a member of a street gang and has committed violent acts in the past does not lend support to the People's claim of extraordinary circumstances in connection with the instant firearm possession offense.
In People v Lloyd F., the Second Department determined that the mere possession by an AO of a loaded firearm in a high crime area, standing alone, does not amount to “extraordinary circumstances” (see Lloyd F., 245 AD3d at 79). The court observed that the Legislature did not see fit to categorically except weapon possession offenses from removal; rather, only cases in which an AO displayed a firearm or deadly weapon in furtherance of an offense, as specified in CPL § 722.23(2)(c)(ii), were made ineligible (see id.). This, according to the Second Department, “makes clear that the Legislature contemplated that certain weapon possession offenses where no weapon was displayed or used in furtherance of another offense could appropriately be transferred to Family Court” (id.). Where, as here, a firearm was not displayed or used in furtherance of another crime, nobody was physically harmed, and no property was damaged, removal to Family Court is appropriate (see id.).
Lastly, while A.D. may have been on probation as a result of his prior conviction for approximately four months before allegedly committing the instant offense, this fact alone is insufficient for the Court to conclude that A.D. is not amenable or would not benefit from the heightened services available in Family Court.
The Court has considered the totality of the circumstances presented in this matter and finds that the People have not met their burden to prevent removal of this action to Family Court. Accordingly, it is hereby
ORDERED that the People's motion, made pursuant to CPL § 722.23(1), to prevent removal to Family Court is denied; and it is further
ORDERED that this action shall be removed forthwith to the Family Court, Westchester County; and it is further
ORDERED that, upon removal, the Youth Part court file shall be sealed, pursuant to CPL § 725.15.
This constitutes the Decision and Order of the Court.
White Plains, New York
HON. SHERALYN PULVER
County Court Judge
Acting Family Court Judge
Footnotes
1In their papers, the People requested a hearing on the facts alleged in the motion, pursuant to CPL § 722.23(1)(c). However, the People subsequently advised the Court that they had withdrawn their request for a hearing.
2 Still images taken from the surveillance video and Instagram video were submitted as Exs. 7 and 8, respectively, to Shapiro Aff.
3Although the People assert in their memorandum of law that A.D. brandished the same firearm in the music video, Detective Liberatore's supporting affidavit states only that A.D. brandished “what appears to be a black firearm with a gold-colored barrel” in the music video (see Ex. 3 to Shapiro Aff.).