‘Abandoned’ boy, 16, charged with felonies, will have case heard in Family Court

The Enterprise — Michael Koff 

Albany County Family Court was the destination for a 16-year-old charged in a Voorheesville robbery with two felonies and two misdemeanors. He appeared in the courthouse, on Clinton Avenue in Albany, six times in the past two months, first in a courtroom where cases of youths being tried as adults are heard, and then in Family Court after his case was transferred there.

ALBANY COUNTY — A 16-year-old boy entered a home in Voorheesville near the end of October with the intention of robbing a 16-year-old girl who lived there, say the Albany County Sheriff’s Office and the Rotterdam Police.

He showed her a pocketknife before stealing her purse, which contained $300. He also assaulted the girl by punching her in the head and neck, causing bruising, swelling, and substantial pain, according to a release from the sheriff’s office. 

In court in December, The Enterprise heard more details about the charges, including that the girl had feared injury, because the boy had lifted up his shirt to show a pocketknife in his waistband. 

In court, the boy’s lawyer said he had been abandoned by his family. His best friend’s mother has become his legal guardian. 

Too many people look at the boy and see no reason for hope, his guardian told The Enterprise. Not her, she said; he’s a child and deserves to be viewed with hope. 

The Enterprise is withholding the boy’s name, as well as that of his guardian to protect his identity since, ultimately, his case is being handled in Family Court, where records are sealed to give offending youth a second chance. The Enterprise is also withholding the girl’s name because she was a victim.

The boy’s case was closely followed by The Enterprise because it highlights a gray area in New York’s new Raise the Age legislation. It followed a pattern typical in the county: The great majority of cases are either transferred to Family Court right away, if non-violent felonies, or moved over later without objection by the District Attorney’s Office.

In New York State, Raise the Age laws went into effect for 16-year-olds in October 2018 and for 17-year-olds one year later. Prior to that, New York was one of only two states that treated 16-year-olds as adults under the law.

Now, 16- and 17-year-old New Yorkers who are charged with a felony have their cases heard first in the new Youth Part of the adult Criminal Court. Most non-violent crimes are transferred right away to Family Court, where youths will not have a permanent criminal record, where their identities will be protected, and where they can more readily be directed to services.

Other cases, like this young man’s, require closer consideration by a judge. Three criteria can cause a felony to remain in the Youth Part of Criminal Court: causing significant physical injury to another, engaging in an unlawful sex act, or displaying a weapon to further the crime. 

The initial charges against the boy were first-degree robbery and second-degree assault, both felonies, as well as second-degree menacing and petit larceny, both misdemeanors.

The boy’s case started out in the Youth Part of Criminal Court, where he faced the possibility of being tried as an adult. 

Since his arrest, the boy has been seen three times in the Youth Part of the criminal court, as Judge Robert Rivera considered whether to transfer his case to Family Court. 

“These charges include violent felonies, so we’ll adjourn for 6 days to determine if the three conditions under Raise the Age laws apply,” Judge Richard Rivera told all of the parties in court in early November. Rivera is a Family Court judge, and hears cases in the Youth Part of Criminal Court under Raise the Age legislation; cases under this legislation are heard by judges trained in adolescent development and family law. 

The case was transferred, and the boy was seen in Family Court three times by Judge Gerard Maney, where the boy pleaded guilty on Dec. 23 to two charges — criminal trespass and petit larceny. 

Maney was set to release him on Dec. 23 to the custody of Schenectady County Family Court, pending written assurance that he was, indeed, remanded in Schenectady on other matters. 

He is waiting to be given a bed in a Raise the Age facility, attorney Sherrie McNulty told Maney. If he were to be placed in custody, or remanded, in Albany County when that bed became available, Schenectady County Family Court would not be able to order him sent to court there, she said. 

Assistant Albany County Attorney Gary Keegan, who represented Albany County in all three Family Court appearances, told The Enterprise this week, “Typically what happens in juvenile matters is that fact-finding occurs in the county where the incident occurred and disposition occurs in the juvenile’s county of residence. This is what happened in this case. The matter was transferred to Schenectady County for disposition.” 


Crime close-up 

At his first appearance, on Nov. 4, the boy’s private-practice attorney, Elena C. Vaida, said that the mother of the boy’s best friend is his legal guardian and that his own family “literally abandoned him.” 

At that appearance, Judge Rivera heard that the youth’s legal guardian was not sure if the boy had been suspended from Mohonasen High School. “They were supposed to hold a suspension meeting, but they didn’t schedule one,” she said. 

The guardian confirmed that the boy is in the midst of proceedings in Schenectady, where he lives, for a matter there. She said she had been scheduled for a predisposition investigation in that case for that same day, Nov. 4, and had canceled it to be in Rivera’s court. 

A representative of the Albany County Probation Department in the courtroom told Rivera that she believed the Schenectady charge was a robbery. 

Major Offense Bureau Chief Shannon Corbitt of the Albany County District Attorney’s Office asked that the boy be placed under probation and, “most important,” that he “stay away from the injured girl.” 

Vaida said that the boy’s legal guardian lives in Schenectady and has a job and so is not able to make frequent trips to Albany to bring him to meet with probation officers there. 

“He wanted to voluntarily participate with probation, but because he lives in Schenectady, it was going to place an incredible burden on him,” Vaida said. 

Rivera confirmed that the boy was already under house arrest and that there was already an existing order of protection for the girl he had stolen from. 

Rivera explained to the boy that the order of protection granted to the victim extends to postings online. He said, “That includes no postings, and no third-party postings on Facebook and Twitter. If they invent a new one tomorrow, none on that.” 

On Nov. 12, Rivera heard from the boy’s legal guardian that his life has been “garbage” and that he has had no support system. 

He has been diagnosed with attention deficit hyperactivity disorder and anxiety, his guardian told the court. 

Near the end of his second appearance, on Nov. 12, Rivera said to the youth, “You have a lot going on in your life. There are certain issues that you can address with medication and counseling.” 

The judge told the boy that he didn’t strike him as someone who needed to be locked up for long periods. But, Rivera continued, if the boy’s behavior kept leading to situations like the one in October, that would be the only option. 

“If you have to take medications, there’s nothing wrong with that, take your medications,” the judge advised. “If you don’t like the way it feels, talk to [the guardian], and she can talk to your provider.” 

Riviera had placed the boy under house arrest at his first appearance, and continued that at his second. 

By the third appearance, the youth had been taken into custody by the Schenectady County Family Court in a matter also dating from October, Vaida told the judge. 

The third appearance in the Youth Part was fairly brief, with prosecutor Renée Merges of the Albany County District Attorney’s Office noting that her office was consenting to removal of the case to Family Court. 

Vaida said that she and her client were “pleased,” and Rivera said he was removing the case to Family Court, where it would be heard by Judge Gerard Maney. 

Outside the courtroom, Vaida reiterated to The Enterprise the three criteria for keeping a case in the Youth Part of Criminal Court. 

“Once they don’t meet that, they can make a motion to fight its being transferred,” Vaida said of the District Attorney’s Office. “But they haven’t.” 

Vaida added, “That’s what the goal is: To have cases transferred.”

Asked if the pocketknife didn’t fulfill the criterion of displaying a weapon, Vaida said, “There was an allegation about that, about a penknife, but —” she trailed off. 

The knife that Vaida referred to as a penknife was called a pocketknife in the initial press release from the Albany County Sheriff’s Office. 

“The determination [of whether to fight against removal to Family Court] is made on a case-by-case basis after a thorough review of the facts and circumstances made available to our office,” Cecilia Walsh, spokeswoman for the Albany County District Attorney’s Office, wrote in an email to The Enterprise. 

“We must be able to satisfy the burden of ‘extraordinary circumstances’ to remove a case from Family Court. In instances where our review determines that we would be unable to meet that burden per the ‘Raise the Age’ statute, we consent to the transfer to Family Court jurisdiction,” she wrote. 

“When we believe we would be able to meet that burden, we proceed with hearings to remove the case to Youth Part of Criminal Court,” Walsh continued. “That ultimate decision is made by the presiding Judge.”


“Different versions”  

In Family Court, the assault charge was a matter of contention between the two attorneys. 

Keegan said at the boy’s second appearance in Family Court, on Dec. 18, that an offer had been made for him to plead to criminal trespass, petit larceny, and assault or attempted assault. 

McNulty told the judge, “He will not admit to assault, because he did not commit an assault on this young woman.” 

Keegan said, “We have different versions of events.” 

Enterprise efforts to reach the victim in the case were unsuccessful as the family had moved from the apartment it had rented at the time of the incident, according to the building’s owner, and a message to the girl on social media was not answered.  

Maney said he had a full calendar during the short Christmas week, but he then offered to hear the matter again on Dec. 23, in an effort to bring about a quicker resolution in the hopes that the boy might not need to spend the entire holiday in a secure facility. 

The boy’s guardian told Maney in court that there was a small chance, if the boy is released in Albany County, that Schenectady County “could let him come home for the holidays.” She continued, “It’s a small chance, but we want to give it our best shot.” 

“I can’t in good conscience allow him to sit in secure detention over the Christmas break,” Maney said. 

At that third appearance, Maney told the boy that, when he himself was 16, he had resented his own father’s rules. His father was tough on him, as the family’s oldest boy, Maney told him. 

“But he was right,” the judge continued. He said of the young men he hung out with at that time, “When I was home after my curfew, they were breaking into cars.” 

He told the boy, “If you keep on getting arrested, doors will not be opened for you the way I believe they could be opened.” The judge pointed to his head as he told the boy to be strong “up here” and then, pointing to his heart, said, “and here.” 

Judge Maney also told the boy to “be very careful when you’re visiting Albany, the county.” 

He warned him about the consequences of the irresponsible use of social media, in an echo of what Rivera had said. “People get mad and they start to get on Twitter and all those social-media platforms, and you can’t take it back.” 

Maney told the boy, “You’ve got your whole life to live, and you’ve got to start thinking about this, and where it’s going to take you. If you get your life together in Schenectady, you’re going to have a great future.” 

For now, the boy remains in the secure facility, his guardian told The Enterprise this week, and his case will be heard next in Schenectady County the week of Jan. 6. 

She is hoping he will be sent home, she said, but she added of Raise the Age beds, “Knowing that these beds are available is absolutely wonderful and gives me hope he can get whatever he needs to choose a different path.” 


By the numbers  

The boy’s case follows larger patterns in Albany County, in which most cases are either removed to Family Court right away or moved over later without objection by the District Attorney’s Office “because of the studied opinion that an extraordinary-circumstances motion would not be successful …” as Walsh explained.

Of the 58 cases of 16- and 17-year-olds  — known as “adolescent offenders” — received by the Albany County District Attorney’s Office since Oct. 1, 2018, under Raise the Age, 22 non-violent felony cases were immediately removed to Family Court with the consent of the office, according to Walsh. These cases consisted largely of charges of grand larceny, criminal possession of stolen property, third-degree burglary, and criminal mischief, Walsh said. 

Of the remaining 36 cases involving 16- and 17-year-olds: 

— One case of second-degree attempted murder was kept in the Youth Part after “an extensive presentation” by the District Attorney’s Office outlining “substantial injury caused to the victim in the case, namely a gunshot wound to a 3-year-old,” Walsh wrote to The Enterprise, adding, “The case has since been indicted”;

— In six cases, the District Attorney’s Office argued for extraordinary circumstances that should keep a case in the Youth Part. Walsh described these to The Enterprise as “serious felonies with especially compelling facts of attempted murder, criminal possession of a weapon, second-degree gang assault, and first-degree robbery. Only one of these six motions was successful; the other five cases were removed to Family Court over the objection of the District Attorney’s Office, Walsh said;

— One motion for extraordinary circumstances is pending in a case of promoting a sex act of a child;

— One case of first-degree rape is pending grand-jury action; and

— Twenty-seven cases were removed to Family Court without objection from the District Attorney’s Office. They mainly involved second-degree robbery, second-degree assault, and second-degree burglary, as well as some first-degree robbery and second-degree criminal possession of a weapon. The reason the district attorney did not object, Walsh said, was because of “the studied opinion that an extraordinary circumstances motion would not be successful, based on the five denied motions and case law from other jurisdictions, as well as the legislative history … .”

This history outlines how “only 1 case in a thousand” would satisfy the “heinous facts” necessary to prevent removal, according to Walsh. Consideration was also given, she wrote, in some of these 27 cases that the proof was thought insufficient to eventually sustain the burden of proof beyond a reasonable doubt. 

Consideration was also given, according to Walsh, to whether the adolescent offender had a previous juvenile history and whether he or she had exhausted the services, treatment, placement, and detention options available through the Family Court system. This is another factor mentioned in the statute and the case law, Walsh said. 

In Albany County, the number of 16-year-olds whose cases have been handled under Raise the Age since its implementation was 48 as of the end of December. The number for 17-year-olds, after just nearly three months of data, was 10. 

Forty-seven of those adolescent offenders were males, and 11 were females. Forty-one were black, 13 were white, and 4 were described as “other.” 

The boy in the Voorheesville case is Caucasian. 

Walsh also provided statistics on cases received by the District Attorney’s Office since Oct. 1, 2018 involving younger defendants, aged 13, 14, and 15, who are known as juvenile offenders. Of the 15 cases, the District Attorney’s Office consented to remove just over half to Family Court “for a variety of reasons,” Walsh stated. 

This group comprises ten 15-year-olds and four 14-year-olds, she said, all male and all but four of them black. Eleven of these younger defendants were black, three were white, and one was of unknown race, according to the statistics Walsh provided. 

Her office tries, Walsh said, to view all of these Raise the Age defendants on a case-by-case basis “to determine what is the most prudent position to take.” 

It considers, she continued, “community safety, victim safety, the Raise the Age legislation and legislative history, and the present case law.” 

The District Attorney’s Office also considers, according to Walsh, “the history or lack thereof of the youth with the juvenile justice system and the manner in which the youth has abided by the treatment/sentence given in the previous cases, if any, they have been involved in.”

Editor’s note: Elizabeth Floyd Mair worked on this story as part of a Raise the Age reporting fellowship from The Chronicle of Social Change, an online news publication; a version of this story is also published there. 

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