DECISION ON MOTION

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 dated October 5, 2020, Supporting Affidavit of Noha Elnakib, Esq. (Assistant District Attorney), subscribed and sworn to on the 5th day of October, 2020, in support of the motion, Affirmation in Opposition thereto by Nora B. Robshaw, Esq., dated October 12, 2020, on behalf of the Defendant ("Principal"), and oral argument having been held on October 14, 2020, and due deliberation having been had, the Court finds the following:

This action was commenced on July 29, 2020, by Felony Complaints, filed under Docket No. FYC-70169-20/001, which charged Principal with Burglary in the 3rd Degree, a Class D Felony, as defined by Penal Law § 140.20, 20.20, Criminal Mischief in the 3rd Degree, a Class E Felony, as defined by Penal Law § 145.05(2), Criminal Possession of Stolen Property in the 3rd Degree, a Class D Felony, as defined by Penal Law § 165.20, and Grand Larceny in the 3rd Degree, a Class D Felony, as defined by Penal Law § 155.35(1). Principal was arraigned on July 29, 2020 and released on his own recognizance (ROR).

Principal was subsequently arrested on August 7, 2020, and arraigned under Docket No. FYC-70175-20/001, on charges of Criminal Mischief in the 2nd Degree, a Class D Felony, as defined by Penal Law § 145.10, and Burglary in the 3rd Degree, a Class D Felony, as defined by Penal Law § 140.20. Principal was released under supervision of probation (RUS).

The Court determined the People could not meet the requirements of CPL § 722.23(2)(c) on either docket. Thereafter, the Court directed that the matters proceed in accordance with CPL § 722.23(1).

On October 5, 2020, the People filed its extraordinary circumstances motion pursuant to CPL § 722.23(1)(b) to prevent removal to family court. The People annexed to its Notice of Motion a Supporting Affidavit by Noha Elnakib, Esq., Assistant District Attorney (the "Supporting Affidavit"), which attached the felony complaints, Supporting Deposition of Buffalo Police Officer Michael Zasada, subscribed and verified under penalty of perjury on September 25, 2020, Supporting Deposition of Aisha Daniels, subscribed and verified under penalty of perjury on July 29, 2020, CD with scene photos, Supporting Deposition of Town of Hamburg Police Officer Eric Wilson, subscribed and verified under penalty of perjury on September 1, 2020, Supporting Deposition of James Appolson, affirmed under penalty of perjury on August 8, 2020, Supporting Deposition of Town of Hamburg Detective Sergeant Howard Widman, subscribed and verified under penalty of perjury on September 1, 2020, DVD interview with AO, CD of Appolson's Performance Center scene photos, Erie County Probation Department Report by Probation Officer Jessica Tiffany, dated August 31, 2020, and Erie County Probation Department Report by Probation Officer Jessica Tiffany, dated September 30, 2020.

On October 10, 2020, Principal was arrested and charged with Grand Larceny in the 4th Degree, a Class E Felony, as defined by Penal Law § 155.30(8), Criminal Possession of Stolen Property in the 4th Degree, a Class E Felony, as defined by Penal Law § 165.45(5), Criminal Possession of Stolen Property in the 5th Degree, a Class A Misdemeanor, as defined by Penal Law § 165.40, and Unauthorized Use of a Vehicle in the 3rd Degree, a Class A Misdemeanor, as defined by Penal Law § 165.05(1). Principal was arraigned and released under supervision of probation.

Principal was born on July 20, 2003. He was brought before Youth Part because he was seventeen years old when the crimes were alleged to have been committed. Thus, by law Principal is considered an Adolescent Offender (hereinafter, "AO"). See CPL § 1.20(44).

Pursuant to CPL § 722.23(1)(a), the court shall order removal of an action to family court unless the district attorney makes a motion to prevent same within thirty calendar days of arraignment. Although this motion was filed more than thirty calendar days from arraignment, is was timely as the CPL statutory time period was suspended by Executive Order Number 202.8.

The People requested an evidentiary hearing in its moving papers. However, the parties agreed to proceed with oral argument on the motion. The parties further stipulated to the Court's review and consideration of the facts related to the October 10, 2020 arrest and arraignment.

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." The Court has considered only those exhibits and documents whose content fall within the mandate of CPL § 722.23(1)(b).

CPL § 722.23(1)(d) provides that a motion to prevent removal of an action to family court shall be denied unless the district attorney establishes the existence of "extraordinary circumstances." Raise the Age legislation ("RTA") does not define extraordinary circumstances. Extraordinary circumstances must be defined and determined on a case by case basis. One can infer from review of New York State Assembly Debate at 39 submitted in accordance with NY Assembly Debate on Assembly Bill A03009C, § 1, part WWW, Apr. 8, 2017, that the legislative intent is for a definition to include facts which are unusual and heinous or remarkable. The Court, in its discretion, should look for circumstances that go beyond what is regular and foreseeable in the normal course of events and proof that the child is not amenable or would not benefit in any way from services. Id. at 39.

As articulated in People vs. J.P., 63 Misc 3d 635 (2019), it is the legislative intent that the extraordinary circumstances requirement be "a high standard for the DA to meet. And under this bill, denials of transfer to the family court should be extremely rare Transfer to the family court should be denied only when 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." See, NY Assembly Records-of Proceeding at 39 [April 8, 2017].

The intent of RTA and the legislative discussion of 'extraordinary circumstances' directs the Court to factors and circumstances which should be considered in its determination. With the aggravating factors making it more likely that the matter should not be removed and the mitigating circumstances making it more likely that the matter should be removed. Neither list is meant to be exhaustive, but rather to provide guidance for the analysis that the Court should engage in when determining the existence of extraordinary circumstances.

The listed aggravating factors are (1) whether the AO committed a series of crimes over a series of days, (2) whether the AO acted in an especially cruel and/or heinous manner, and (3) whether the AO was a leader of the criminal activity who had threatened or coerced other reluctant youth into committing the crimes before the court.

The listed mitigating circumstances, meant to include a wide range of individual factors, are 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. See Transcript of New York State Assembly session April 8, 2017, pg. 40.

It is important to address the content of the Felony Complaints which served as the basis for commencement of these actions and sets forth in detail the factual allegations of the crimes charged. The factual parts of the instruments seem to support the elements of the alleged offenses. However, this Court does not find the instruments setting forth the behavior of AO to be statements of sworn facts based upon personal knowledge. Since the factual part of an unsworn accusatory instrument cannot be the basis for extraordinary circumstances finding, the Court considers the content of the supporting depositions upon which the People argue in their totality.

The People argue that extraordinary circumstances exist when this case is viewed in the totality of its circumstances. These circumstances, according to the People start with the fact that the AO has been charged with multiple felony crimes during a timeframe dating back to April 2020. While the People acknowledge that the crimes charged are all property crimes, they [*2]argued that the victims are small business owners who have suffered significant damage and financial hardship as a result of AO's behavior. According to the People, this is a distinction from other property crimes that qualifies as an aggravating factor as articulated by the legislators.

The People further argue that AO has shown that he is not amenable to services and would not benefit from the heightened services offered in family court. The basis for this belief is that AO was previously charged in Youth Part in April 2020. Those matters were removed on consent of the parties to assure AO would receive the heightened services available in family court. AO nevertheless committed the additional crimes for which he was arraigned on July 29, 2020. After AO was released on his own recognizance and referred to the Youth Part Resource Coordinator, he was once again arrested on August 7, 2020, and charged with committing additional property crimes. AO was released under supervision of probation and directed to comply with conditions of release. AO was subsequently arrested on October 10, 2020 and charged with committing more property crimes. The People argue AO was under supervision release and was provided services and failed to benefit because he simply has no interest in the services offered to him.

Defense Counsel (hereinafter, "Counsel") argues that AO is merely a child with a minor criminal history of property offenses. That even if the claims made by the People are true, they do not amount to "unusual and heinous" behavior as required by the legislation. Moreover, Counsel argues that proof or even a suggestion by the People that AO was a leader of the criminal activity who had threatened or coerced other reluctant youth into committing the crimes before the court has not been offered.

Counsel further argues there are significant mitigating circumstances the Court should take into consideration that would justify removal. That AO is the quintessential teenager that RTA had in mind. Counsel points to circumstances such as AO's limited maturity level which results in his being a follower and not a leader. Counsel argues this is problematic for AO who lacks positive role models to follow. Counsel specifies that AO was raised in neighborhoods troubled with gang activity, and without good influences to help guide AO in better directions he is negatively influenced by his environment. Moreover, AO is raised by a single parent who experiences financial difficulties. AO engages in the behavior of which he is accused out of a desire to possess certain things he cannot otherwise have. Counsel further believes the Court must consider the fact that AO is himself a father in waiting.

Regarding the People's assertion that AO failed to comply with services, Counsel argues that those services offered may not have been the ones most needed. Counsel directs attention to AO never having scheduled a substance abuse evaluation due to his mother not scheduling it. It is therefore unknown if AO is in need of substance abuse treatment and is not receiving it through no fault of his own. Counsel summarizes her position that AO could benefit from substance abuse rehabilitation, positive mentoring and a stable home environment more appropriate for a child.

Every motion to prevent removal should be viewed on a case by case basis. The case should be looked at in totality including aggravating factors and mitigating circumstances.

In the present case the aggravating factors are troubling. First, AO was charged with multiple felonies in April 2020 in Youth Part which were removed on consent to family court pursuant to CPL § 722.23(1)(c). Then within four months, on July 29, 2020, AO was arraigned on new [*3]criminal charges. Less than ten days later, on August 7, 2020, while released on his own recognizance he was charged and arraigned on additional criminal charges. And while the extraordinary circumstances motion was pending, AO was again arrested and arraigned on additional charges October 10, 2020. While this behavior does not fall squarely within the plain language of RTA that proof must be offered showing principal "committed a series of crimes over a series of days", it is troubling. Second, by all accounts, AO has failed to comply with the probation conditions of release under supervision as is articulated in the Probation Reports dated August 31, 2020 and September 30, 2020. AO was to be engaged with probation during the time when the alleged crimes took place. Thus, AO does not appear amenable to services.

Counsel addressed numerous mitigating circumstances to be considered by the Court. Counsel makes the point that AO has been raised in an environment fraught with the exact obstacles that the legislators articulated should be considered. Circumstances that make it more difficult for a youth and therefore should be given weight in considering whether the child should be seen as a person who is in need of services. AO lacks insight and is susceptible to peer pressure due to immaturity and the absence of positive role models. He experiences economic difficulties and substandard housing. He has educational challenges due to difficulties in learning. And though the Court has no proof of Counsel's claim, AO may experience unaddressed controlled substance abuse. These mitigating factors clearly fall within the examples articulated in RTA and should not be disregarded.

While this Court concludes the record shows AO is alleged to have committed a series of crimes over a six-month timeframe, and does not appear to be amenable to services, the nature of the alleged criminal conduct undoubtedly cannot be characterized as heinous. It has been consistently held by courts across the state that principals charged with property crimes are to be removed from Youth Part. See, People v. A.S, Youth Part, Chautauqua County (July14, 2020), People v. A.O, Youth Part Richmond County (August 14, 2019). The aggravating factors shown by the People, when viewed together and through the lens of the mitigating circumstances, are insufficient to support a finding of extraordinary circumstances.

Based upon the foregoing, the Court concludes that the People have not met its burden to prevent removal of this action to the family court.

So, Ordered.