Brenda M. Freedman, J.

The People having moved pursuant to Criminal Procedure Law, Article 722, § 722.23(1), et seq. for an order preventing removal of this action to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion and Supporting Affidavit of Joelle M. Marino, Esq. (Assistant District Attorney), dated March 8, 2023; the Attorney Affirmation in Opposition by Nora Robshaw, Esq., dated March 16, 2023; on behalf of AO J.K.; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

Procedural History

On February 8, 2023, Lieutenant J. Pietrzak observed a video posted on social media whereby two young males were in the back of a pickup truck brandishing weapons. One male was identified, and the second had on a white mask with pink and black hearts on it. Approximately four hours later, a license plate reader identified a truck driving by that had been reported as stolen. This stolen vehicle's plate matched the plates of the truck shown in the social media video. Upon pursuit of the truck by Officers, the truck fled and was found abandoned shortly thereafter. Witnesses told the Officers that the passengers of the vehicle fled south on Delaware.

The Officers knew of 2439 Delaware Avenue in Buffalo being a location where criminal activity occurs; this address was in the path of where witnesses observed the passengers running. Upon review of surveillance cameras at this property, Officers observed three males entering the building, and subsequently entering apartments 101 and 105. One of the males was wearing the same white mask with pink and black hearts on it.

Two (2) guns were recovered from Apartment 105 including a loaded Beretta handgun which had been found on the bed wrapped in a white mask with pink and black hearts on it. A cell phone, later determined to belong to A.O. J.K., was also found lying on the bed next to the Beretta.

Prior to the recovery of the guns. SWAT had pulled out all the building's occupants. A.O. J.K. had been found in Apartment 105.

AO J.K. and one adult co-defendant were arrested and charged with two counts of Criminal Possession of a Loaded Weapon, Second Degree, a class C felony under Penal Law §§ 265.03 and Robbery in the Second Degree, PL § 160.10(a).

On February 9, 2023, AO J.K. appeared in front of this Court and entered a plea of not guilty. This Court remanded AO J.K. On February 15, 2023, this Court conducted a six-day reading. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c). The parties were ordered to proceed in accordance with CPL § 722.23(1). AO J.K.’s remand was continued.

Findings of Fact

The following documents are attached to the People's Motion: Accusatory Instruments, Felony Hearing testimony of J. Pietrzak, Firearms Analysis Report dated February 15, 2023, and Accusatory Instruments for FYC-72665-22. According to these documents, on February 8, 2023, AO J.K. and his co-defendant were in possession of loaded weapons, namely a Gen5 Glock .19 9x19 Handgun, and a .22L Beretta Handgun. Pursuant to a search warrant, Buffalo Police Officers searched the residence, which is known to be frequented by Respondent, and found AO J.K. and an adult co-respondent at the residence with the above weapons. P.O. Pietrzak had personal knowledge of what AO J.K. looked like, and positively identified him at the scene. Further, the white mask with pink and black hearts on it, which was observed on AO J.K. earlier in the day, was recovered on the scene where the guns were found.

Conclusions of Law

Pursuant to CPL § 722.23(1)(a), the Court shall order removal of the action to Family Court unless, within 30 days of arraignment, the District Attorney makes a written motion to prevent removal of the action.

Pursuant to CPL § 722.23(1)(d), the Court shall deny the district attorney's motion to prevent removal unless the Court determines that extraordinary circumstances exist that should prevent the transfer of the action to Family Court. CPL § 722.23 does not define the term "extraordinary circumstances."

In People v T.P. , 73 Misc 3d 1215(A) (NY Co Ct 2021), the Court referenced the common dictionary and the legislative history of the Raise the Age legislation and interpreted "extraordinary circumstances" to mean that "the People's Motion Opposing Removal must be denied unless they establish the existence of an ‘exceptional’ set of facts which ‘go beyond’ that which is ‘usual, regular or customary’ and which warrant retaining the case in the Youth Part instead of removing it to the Family Court."

New York State Assembly members debating the Raise the Age legislation indicated that the extraordinary circumstances requirement was intended to be a "high standard" for the District Attorney to meet, and denials of transfers to Family Court "should be extremely rare". NY Assembly Debate on Assembly Bill A03009C, Part WWW, at 39, April 8, 2017; see also, People v S.J., 72 Misc 3d 196 (Fam Ct 2021). "[T]he People would satisfy the ‘extraordinary circumstances’ standard where ‘highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in the family court’. People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021) citing Assembly Record , p. 39.

The legislators indicated that in assessing "extraordinary circumstances", the Judge should consider the youth's circumstances, including both aggravating factors and mitigating circumstances. People v T.P., 73 Misc 3d 1215(A) (NY Co Ct 2021) ; Assembly Record , pp. 39 to 40. Aggravating factors make it more likely that the matter should remain in Youth Part, and mitigating circumstances make it more likely that the matter should be removed to Family Court. People v S.J., 72 Misc 3d 196 (Fam Ct 2021).

Aggravating factors include whether the AO: (1) committed a series of crimes over multiple days, (2) acted in an especially cruel and heinous manner, and (3) led, threatened, or coerced other reluctant youth into committing the crimes before the court. People v S.J., 72 Misc 3d 196 (Fam Ct 2021) ; Assembly Record , p. 40.

Mitigating circumstances are meant to include a wide range of individual factors, including economic difficulties, substandard housing, poverty, difficulties learning, educational challenges, lack of insight and susceptibility to peer pressure due to immaturity, absence of positive role models, behavior models, abuse of alcohol or controlled substances by the AO, or by family or peers. People v S.J., 72 Misc 3d 196 (Fam Ct 2021) ; Assembly Record at 40.

"The People may not, in any way, use the [AO's] juvenile delinquency history, including any past admissions or adjudications, in any application for removal under the statute." People v J.J., 74 Misc 3d 1223(A) [NY Co Ct 2022] ; citing Family Court Act § 381.2(1) ; see also, People v. M.M., 64 Misc 3d at 269, supra, citing Green v. Montgomery, 95 NY2d 693, 697 (2001).

CPL § 722.23(1)(b) mandates that every motion to prevent removal of an action to Family Court "contain allegations of sworn fact based upon personal knowledge of the affiant." This Court considered only those exhibits and documents whose content fall within the mandate of CPL § 722.23(1)(b) in making this decision.

In their argument to establish extraordinary circumstances, the People allege several aggravating factors, including that Defendant was released pending sentencing on a different felony mater, and was then arrested herein for possession of a loaded and operable firearm. Additionally, the People cite People v J.R. , (70 Misc 3d 1224(A), 141 N.Y.S.3d 294 [NY Co Ct 2021] ) where the youth in question was adjudicated a Youthful Offender, only to "get arrested again for a gun possession charge while he was on parole." (Id.) The Court found that his recent previous history in their Court combined with his disregard for the Court's previous leniency was a substantial aggravating factor to keep the matter in Youth Part. Here, AO J.K. was not previously adjudicated a youthful offender, but the Court had previously indicated an intent to grant Youthful Offender status to AO J.K. so long as he complied with the conditions of his release, including being law abiding.

Defense counsel raised mitigating factors for this Court to consider. She states that AO J.K. has a lack of family support, that he was the youngest member charged and therefore did not coerce "reluctant youth," and cites positive reports from his placement with OCFS. Defense counsel cites AO J.K.’s release without any resources as a mitigating factor, claiming that he is very amenable to services.

Historically, AO J.K. has had eleven (11) cases brought in the Youth Part. Five (5) of those cases were previously removed to Family Court starting in March, 2022 through September, 2022. Since that time, Respondent was arrested in six (6) additional matters and those are currently pending in the Youth Part. Of those, one (1) is pending sentencing. The arrest in the instant matter occurred months after the five cases had been transferred to Family Court and while sentencing was pending in the other matter. The Defendant's numerous arrests following the transfer of five cases to Family Court clearly display that AO J.K. will not benefit from the heightened services in Family Court. Further, it is alleged that AO J.K. had a loaded firearm in his possession while he was released and pending sentencing on a prior felony wherein he had been promised a Youthful Offender status if he complied with his release conditions. A.O. J.K.’s conduct shows a complete disregard for the conditions of AO J.K.’s release and the prior leniency of the Court. Further, AO J.K. has had the benefit of the services of Family Court since March, 2022 and yet continues to commit crimes.

This Court has found that substantial aggravating factors exist here that support a determination to keep this matter in Youth Part including AO J.K.’s history, the volume of cases that AO J.K. has had in the past and continues to have in both Youth Part and Family Court, and his disregard for the Court's previous leniency. AO J.K.’s actions illustrate that he will not be amenable to the heightened services of Family Court. The mitigating factors outlined by Defense counsel were considered but are not so probative as to outweigh the aggravating factors found.

The People have met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, taking into account the mitigating factors and the finding of substantially aggravating factors, this Court finds that extraordinary circumstances exist warranting this case remain in the Youth Part.

This constitutes the opinion, decision, and order of this Court.

SO ORDERED.