THE PEOPLE’S AFFIRMATION IN SUPPORT OF THEIR MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S CASE TO FAMILY COURT WAS NOT BASED ON THE PROSECUTOR’S PERSONAL KNOWLEDGE AND FAILED TO ALLEGE DEFENDANT’S SPECIFIC CONDUCT; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People’s motion to prevent removal of the 17-year-old defendant’s case to Family Court should have been denied:

The court was … required to order removal of the action to Family Court unless the People successfully moved to prevent removal by establishing “that extraordinary circumstances exist that should prevent the transfer” … . Such a motion must “contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing” … . Whether extraordinary circumstances exist to preclude removal to Family Court is a discretionary determination to be made by a court after consideration of “the totality of the facts and circumstances” … . A court exercising that discretion, however, should give consideration to the legislative intent that retention should be the exception and not the rule, i.e., that only “extremely rare and exceptional cases” involving “highly unusual and heinous facts” and “strong proof that the young person is not amenable [to] or would not benefit in any way from the heightened services in the family court” should be precluded from removal … .

Here, the People’s supporting affirmation relied heavily on the nature of the charges against defendant. … [E]ach count on which defendant was indicted also named 17 codefendants with no factual allegations that would permit parsing out defendant’s specific conduct in, for example, possessing either a controlled substance or a weapon. Although defendant was also alleged to have committed conspiracy in the second degree, he was not alleged to have committed any overt act in furtherance of that conspiracy. The prosecutor also failed to state that the few factual allegations that were included in the People’s supporting affirmation were based on the prosecutor’s “personal knowledge” …  and that conclusion is not a reasonable inference from the affirmation as a whole … . Instead, there is no indication from what specific sources any information was obtained, no supporting documentation was included with the motion, and no request for a hearing was made … . Although the People also argued that defendant’s previous arrests on similar charges weighed against removal, we note that “reoffense in and of itself” is not “extraordinary” (id. at 666 [internal quotation marks omitted]). The mere fact of a prior charge or charges does not provide evidence of defendant’s actual prior conduct, i.e., the specific “illegal or immoral acts,” if any, that might have led to those charges … , or whether defendant’s conduct constituted “escalating criminal behavior” … . The People’s motion therefore failed to contain sufficient “allegations of sworn fact based upon personal knowledge of [an] affiant” … on which the court could have relied in considering defendant’s actual role in the charged offenses in relation to his numerous codefendants, many of whom were adults … . People v Quashawn C., 2026 NY Slip Op 05892, Fourth Dept 10-9-26

Practice Point: Consult this decision for a detailed discussion of what a prosecutor must demonstrate to prevent removal of a 17-year-old defendant’s case to Family Court.