Judge moves gun case to Family Court under Raise the Age Law

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An Erie County Family Court judge has denied a prosecutor’s motion to prevent a case from being moved to the juvenile delinquency part of Family Court.

The defendant, identified as Demian H., was charged with third-degree criminal possession of stolen property, second-degree unauthorized use of a vehicle, third-degree unauthorized use of a vehicle, and second-degree criminal possession of a weapon.

The charges stem from an incident on Dec. 6 when Buffalo Police received a 911 call reporting gunshots, and a vehicle that struck a house.

Surveillance cameras recorded three vehicles box in, and then confront the occupants of a Toyota Camry, which had been stolen.

Gunfire was exchanged between the Camry and at least two of the unknown suspects before the Camry fled and soon crashed into the front yard of a home.

The heavily damaged Camry was abandoned. Residential video showed multiple suspects fleeing from the vehicle.

Demian was recorded exiting the rear window of the Camry with a handgun in his right hand.

Officers found Demian and two co-defendants hiding nearby. They matched the description from the residential video footage.

Police found a loaded handgun along Demian’s “flightpath.” A gun casing was found in the rear seat of the stolen vehicle.

New York state’s Raise the Age Law defines a 16 or 17 year-old person charged with a felony as an “adolescent offender.”

Under the law, after arraignment, the case of an adolescent offender must be moved to Family Court unless, within 30 days, the prosecutor establishes that extraordinary circumstances exist.

The term “extraordinary circumstances” is not defined in the Raise the Age Law.

The legislative history of the law shows that the prosecutor could satisfy the “extraordinary circumstances” standard where “highly unusual and heinous facts are proven and there is strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court,” Judge Brenda M. Freedman wrote.

The prosecution argued that the case should not be transferred to Family Court because Demian’s actions were “especially heinous.”

“Circumstantial evidence shows that, while riding in a stolen vehicle, (Demian) indiscriminately fired a handgun within a dense urban community,” the prosecutor claimed.

The prosecutor also argued that Demian “has been afforded the opportunity to benefit from various services provided by Family Court, and yet, he has made no appreciable positive response and continues to engage in escalating criminal behavior.”

Demian’s attorney presented mitigating circumstances.

Demian was a backseat passenger of a stolen vehicle, they noted. Three other vehicles, driven by unknown suspects, boxed in Demian’s vehicle and confronted the occupants of his vehicle, they said.

Demian’s attorney argued that, if he fired a gun, he would have been using the gun to defend himself after other unknown gunmen attempted to trap his car and kill him and the other occupants of his vehicle.

Freedman noted that Demian was not alleged to be the leader of criminal activity and did not commit a series of crimes over a series of days.

And he is not alleged to have brandished or used the firearm in furtherance of any crimes, she wrote.

“The People have not met their burden to prevent removal of this action to Family Court,” Freedman wrote.

“Under the totality of the circumstances, considering the mitigating factors and the finding of substantially aggravating factors, this Court finds that extraordinary circumstances do not exist to warrant this case remain in the Youth Part. Accordingly, this case shall be removed to Family Court,” Freedman wrote.

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