One early June night in Manhattan — amid the pandemic-fueled shutdown and burgeoning protests against police brutality — a test emerged for the state’s Raise the Age law, which bars most 16- and 17-year-olds from being criminally prosecuted as adults.
Two blocks from a looted Foot Locker, police arrested an armed 16-year-old just after 10 p.m. He had a loaded 9 mm semi-automatic “strapped to his chest,” and was found sitting in a car crammed with six of his friends, boxes of shoes, “cellular telephone products” worth about $1,700, and clothing items, “all still displaying packaging and price tags,” according to court records.
The case against David, whom The Imprint is not fully naming to protect his identity as a minor, is one of more than 1,000 exceptions to the 2017 Raise the Age law, which passed after a decadelong push by advocates to keep older teens out of notorious lockups like the Rikers Island, and to have their cases handled as juveniles in family court instead of as adults in criminal court.
But under the law, some 16- and 17-year-olds whose felony cases were especially violent, or featured “extraordinary circumstances,” can be considered for an exception to Raise the Age’s barring of most youth from the adult criminal courts.
Prosecutors on David’s case presented Manhattan Criminal Court Judge Stephen Antignani with two felony charges: possession of a weapon in the second degree and possession of stolen property in the fourth degree. But before settling David’s culpability, Antignani first had to decide whether the teen’s case should stay in his courtroom at all.
While all felony cases for teens under the age of 18 are first filed in criminal court, all but the most violent are automatically shifted to the rehabilitation-focused family courts. To keep certain less-violent cases in criminal court, prosecutors can also convince a judge there are “extraordinary circumstances.”
A review of county data, dozens of judicial rulings, and interviews with public defenders and prosecutors around the state reveal that these have been among the fiercest court battles during the first two years of the 2017 law — a reform that passed in New York years after the rest of the country. In general, attorneys say Criminal Court judges have been setting a high bar for prosecutors. But the tense state of New York and the nation, with a spike in shootings and year-long political unrest, is putting the exception to the test. It could become more likely cases involving extreme violence and injuries, and young defendants with recent histories of prior offenses, will remain in New York’s criminal courts with adults.
In an examination of state data on 5,350 felony arraignments between October 2018 and last month, roughly 20% of New York cases involving youth ages 13 to 17 remained in criminal court. (The exceptions for 16- and -17-year-olds under Raise the Age don’t apply to children 13 to 15 who have committed the most serious crimes, but prosecutors still have discretion in the latter cases to pursue removal.) In other large cities like Buffalo and Rochester, teens are being shifted to Family Court even less often, with 30% of youth cases handled in the criminal court.
In those cases, the teens are also subjected to lengthier adult sentences.
Among the youth being treated as an adult is a Buffalo 17-year-old identified as S.E. in court documents. Accused of a more violent crime than David, court records claim S.E. issued violent threats to his ex-girlfriend by calling, texting and Snapchatting, and repeatedly showed up at her house uninvited. Eventually, he broke into her home with a knife and a hammer, threatening the girl’s mother and holding a knife to the girl’s neck, according to a judge’s recent opinion.
He hadn’t seriously injured anyone, but S.E. had perpetrated “terrorism” that was “cruel, unusual, and heinous,” wrote Judge Kevin Carter in his decision keeping the case in criminal court. Carter rejected the defense counsel’s argument that the teen’s behavior was “teenage obsession” and “unrequited love” that was “far from highly unusual.”
David’s arrest for looting was among the few during the massive protests last summer that involved a minor, a review of city crime data suggests. And as a 16-year-old who hadn’t seriously injured anyone, like S.E., David was potentially eligible for transfer across the street to Manhattan’s Family Court.
There, a criminal case becomes a juvenile delinquency case. In that venue, David would have been more likely to receive rehabilitation-oriented services and, had a judge chosen to incarcerate him, placement in one of the city’s well-regarded, development-oriented residential programs, known as Close to Home.
Instead of being a “defendant” with an unsealed record of guilt or innocence, he’d be a “respondent” with a better shot at record-sealing. He’d also face a delinquency judge trained and experienced in accounting for youthful impulsivity, peer pressure, the impact of childhood trauma, and young people’s capacity to grow, learn and age out of criminal behavior, as most do.
But the prosecutors on David’s case, working for Manhattan District Attorney Cyrus Vance Jr., didn’t think the teen’s behavior warranted those benefits. They sought to persuade Antignani to keep the case in his courtroom — now operating virtually due to the pandemic — in light of its “extraordinary circumstances.” In this case, it wasn’t David’s first serious run-in with the law this year.
Credit: Manhattan District Attorney’s office
David’s attorney did not respond to multiple voicemail messages, and a spokesperson for the Manhattan district attorney declined to comment on the case because it is open and pending.
Nancy Ginsburg, the director of the adolescent intervention and diversion project for the Legal Aid Society, which represents most Raise the Age teens in criminal court, said it was the kind of close-call removal decision she and her peers are watching most closely.
Ginsburg is a strong supporter of lenient treatment for young defendants and has been tracking all Raise the Age-relevant decisions across the state. With “extraordinary circumstances,” she said she sees clear patterns in judges’ thinking, especially when there are severe injuries to a victim. Those are the cases she said are most likely to remain in the adult systems.
Still, Ginsburg and other advocates are pleased that more than 90% of nonviolent felonies were removed to family court in the law’s first year.
“Judges are really starting to flesh out the ‘amenability,’” she said, referencing the term for how likely youth are to respond positively to the support they can receive in Family Court — including mental health treatment and mentoring. “That’s really where these cases should be going, the true nitty-gritty of Raise the Age — which court can meet each individual kid’s needs, and that it’s not just going to be an analysis about their offense.”
But, she added, gun cases like David’s — even when there are no victims — are “making judges nervous right now.”
Stats showing an uptick in shootings by the public during the pandemic have led some law enforcement officials to point the finger at the Raise the Age law for diminishing public safety.
“We warned about the fact that young people are carrying weapons and shooting each other, that the process in Family Court was not adequate,” Albany County District Attorney David Soares recently told The Times-Union newspaper, “and at the time we were told we were fear-mongering.”
Credit: Albany District Attorney’s office
In his recent ruling on David’s case in Manhattan, Antignani noted that the reform legislation intended for the “overwhelming bulk” of teen charges to be “removed to Family Court” after an initial evaluation in the adult courts. But he nonetheless was poised to make an exception in David’s case.
That’s happened more frequently in some parts of the state, including Erie County. Out of 306 cases involving 16- or 17-year-olds that were initiated in the criminal court during the first two years of the 2017 law, 101 remained there, a rate of just under one-third.
The Erie County District Attorney’s Office declined to comment on the contrast with the statewide rate of roughly 20%; a spokesperson stated in an email that her office would need more time to review their records. She nonetheless described the rate as a “success” for her office.
“I would like to see more cases going to Family Court, but I think the culture is, ‘these are the only ones we can grab on,’” said Buffalo criminal defense attorney Lana Tupchik of cases remaining in criminal court. “Because they want to report to the public that they hold most violent felons accountable.”
In another close ruling last May, a Monroe County Criminal Court judge disputed an earlier ruling from a Binghamton-area judge that teen defendants must be the “sole actor” in a serious felony in order to stay in criminal court — suggesting they weren’t motivated by the peer pressure most teens are predisposed to. The Erie County judge wrote that that ruling adopted an overly narrow interpretation of legislative intent. In this case, each of the two defendants — accused of beating a homeless person — shared a “community of purpose,” and so belonged in criminal court.
For Judge Antignani in Manhattan, the timing of David’s June arrest was one key issue: “The defendant exploited the city’s vulnerability at the height of the COVID-19 pandemic,” he wrote of the alleged looting, “and as it was being roiled by systemic looting that resulted in a citywide curfew.”
Further, the judge argued, David had been arrested “a mere three months earlier for a similar violent felony offense.” That case was transferred to Family Court, but the services there “seemingly had no impact on the defendant’s behavior.” David “was not amenable” to Family Court’s services and therefore would not benefit “in any way.”
