Split NY appeals court affirms robbery, burglary convictions

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In a split decision, a state appeals court has affirmed robbery and burglary convictions against a defendant who was 17 at the time of the crimes.

Defendant Errick Guerrero was convicted in July 2022 in Onondaga County Court of first-degree burglary and robbery. The convictions stem from a home invasion robbery.

Guerrero’s appellate lawyer argued that the judge should not have granted a prosecution motion preventing the case from being moved to Family Court.

“We reject that contention,” the Appellate Division of state Supreme Court, Fourth Department, wrote.

In 2017, the New York State Legislature enacted the Raise the Age Law, which defines a person who was charged with a felony committed on or after Oct. 1, 2018, when the person was 16 years old, or committed on or after Oct. 1, 2019, when they were 17 years old, as an adolescent offender.

Under the Raise the Age Law a judge must review such cases to determine whether the prosecutor has proven by a preponderance of the evidence that the adolescent offender caused significant physical injury to someone, displayed a gun or deadly weapon, or unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact.

If none of those factors exist, the case must be transferred to Family Court, unless the prosecutor establishes that extraordinary circumstances exist.

The term “extraordinary circumstances” is not defined in the statute.

“We conclude that the court did not abuse its discretion in granting the prosecutor’s motion to prevent removal inasmuch as the prosecutor established that there are extraordinary circumstances,” the majority wrote.

The majority acknowledged that prior adjudications as a juvenile delinquent, or any evidence obtained as a result of those proceedings, could not be used in determining whether to grant the prosecutor’s motion.

“Nevertheless, although it is impermissible to raise any issue related to the adjudication or evidence obtained therefrom, it is still permissible to raise the illegal or immoral acts underlying such adjudications,” the court wrote.

“Despite the various services and programs provided to defendant over the last five years while defendant had been involved in the criminal justice system, defendant has made no appreciable positive response and continues to engage in escalating criminal behavior,” the majority wrote.

“Thus, we conclude that, under the totality of the circumstances, and taking into account the mitigating factors and the substantial aggravating factors, the court did not abuse its discretion in determining that extraordinary circumstances exist warranting that this case remain in the youth part,” the majority wrote.

Justice Mark A. Montour dissented and voted to reverse the conviction.

“Inasmuch as I conclude that County Court abused its discretion … to prevent removal of defendant’s case to Family Court and would therefore reverse the judgment, deny the People’s motion, and remit the matter to County Court for further proceedings … I dissent,” Montour wrote.

“Here, the People moved to prevent removal of the action to Family Court … arguing that the dangerous nature of defendant’s conduct constituted ‘extraordinary circumstances’ warranting prosecution of the action in County Court,” Montour wrote.

“The People asserted that removal of the action to Family Court would ‘directly affect the confidence of the public in the criminal justice system,’ and that defendant — who had eight prior Family Court appearance tickets and two prior adjudications resulting in probation — was not amenable to services that would be available in Family Court,” he wrote.

“The People did not present any evidence regarding the nature of the underlying acts that resulted in the adjudications as a juvenile delinquent. Rather, the People presented evidence of defendant’s conduct after appearing in Family Court in the juvenile delinquency proceedings, including his success or failure on probation, as well as the services that he received through Family Court.”

The Family Court Act “expressly prohibits the use of the adolescent offender’s juvenile delinquency history and records against the adolescent offender in any other court, Montour pointed out.

“Thus, to the extent that the majority considers defendant’s response to the treatment that he received while participating in Family Court after being adjudicated a juvenile delinquent, I submit that such consideration is improper,” Montour wrote.

“Even assuming … that we may consider defendant’s history in Family Court to support the People’s assertion that defendant was not amenable to the heightened services available, I conclude that the record does not support that assertion,” Montour wrote.

“Based upon the majority’s conclusion that the facts and circumstances of this case warrant a finding of extraordinary circumstances, one could question what set of facts would need to be presented that would not justify granting a motion to deny removal to Family Court,” Montour wrote.

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