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 Denise A. Herman, Esq. (Assistant District Attorney), dated November 23, 2022; James A. W. McLeod, Esq. having filed an Answering Affirmation and memorandum of Law in Opposition of the Motion to Prevent Removal, dated November 28, 2022, on behalf of AO B.L.; the Supplemental Notice of Motion of Denise A. Herman, Esq., dated December 7, 2022; the Response by James A. W. McLeod, Esq., dated December 11, 2022; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

AO B.L. was charged under FYC-73288-22/001 with one count of Making a Terroristic Threat, PL §490.20(1), filed on October 23, 2022; two counts of Criminal Possession of a Weapon in the Fourth Degree, PL §265.01(1), filed on October 23, 2022; and two counts of Criminal Possession of a Firearm, PL §265.01-B(1), filed on October 24, 2022.

On October 23, 2022, Accessible Magistrate Samuel P. Davis. Sr. arraigned the AO and released him without bail.

On October 24, 2022, this Court arraigned the AO and held a six-day reading. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c). This Court ordered this action to proceed in accordance with CPL § 722.23(1). AO B.L. was released on RUS to the custody of his grandfather.

The People filed a Motion to Prevent Removal to Family Court on November 18, 2022. The following documents are attached to the People's Motion: Felony Complaints of Detective Joel Blackburn and A.D.A. Denise Herman, Esq.; Certificate of Authenticity of Domestic Records of Regularly Conducted Activity of Justin Walker, Behavior Detail Report of AO B.L., Supporting Deposition of Detective Joel Blackburn, email correspondence between A.D.A. Herman and Anthony Vesich, FBI, Erie County Central Police Services Forensic Laboratory Report and Analysis dated October 14, 2021, Images of Firearms recovered, Erie County Central Police Services Forensic Laboratory DNA Analysis Request Form dated October 23, 2022, RUS Notice of Failure to Comply from Probation Officer Justin Roehner with attached exhibits, Supporting Deposition of Crime Research Analyst Kathryn Billanti, Social Media screenshots, and Supporting Deposition of Complainant J.L., M.P., G.S..

On November 28, 2022, counsel for AO B.L. filed an Answering Affirmation and Memorandum of Law in Opposition of the Motion to Prevent Removal.

On December 7, 2022, the People filed a Supplemental Notice of Motion Preventing Removal to Family Court, based upon an additional incident that occurred on November 10, 2022. The following documents are attached to the People's Supplemental Motion: Accusatory Instrument for AO B.L., Supporting Deposition of David Nieves, Order of Protection dated October 24, 2022, Letter from Buffalo Teacher's Federation to John Flynn, Erie County District Attorney, emails from Buffalo Teacher's Federation members, and updated Youth Part Court Report.

This Court issued a Decision on Motion on December 7, 2022. Defense Counsel requested time to respond to the People's Supplemental Motion and reconsideration of the Decision on Motion. This Court granted Defense Counsel's request.

On December 11, 2022, counsel for AO B.L. filed a Response to the People's Supplemental Motion.

On October 19, 2022, an Instagram user with the vanity name of "Hcths.oota", and a picture on the account that is used on the HCTHS school website as their school emblem, made threats through Instagram that he would shoot and harm others at his school. The threats included an Instagram post stating, "Blowing Ts down tmr", and a direct message sent by Hcths.oota" and received by an HCTHS student, J.L., on October 19, 2022, at 10:03 PM, stating, "Yo I'm finna shoot it up don't come tmr". Followed by more direct messages at 10:33 PM stating, "Gotchu", "Your my first target on god," and "What homeroom you in." J.L. did not know who Hcths.oota was, but he did know that "oota" commonly means shooter. J.L. was alarmed and told his mother about the threats. He did not go to school the next day.

On October 20, 2022, the HCTHS Assistant Principal became involved in an investigation of the Instagram threats. There was concern about a planted bomb or incendiary device based on the nature of the threats. The school and police performed a sweep of HCTHS in the early morning of October 20, 2022, with negative results. The school day then proceeded with increased security presence to assist with searching students' bags. School administration and police continued to investigate the threats and determined that AO B.L. was responsible for them. The school put AO B.L. on a long-term suspension. This was not the school's first disciplinary action against AO B.L. He has been repeatedly reported for discipline for inappropriate actions with teachers and students, including throwing things, outbursts during class, messing with school equipment, calling students names, making inappropriate gestures, [*2]pushing teachers, fighting with other students, and cyber bullying other students. None of the interventions commonly used to remediate student behavior have worked.

On October 22, 2022, Detective J.B. received information from the FBI that the Instagram threats originated from an IP address at 218 F. Street. Hon. Kevin M. Carter signed and authorized the search warrant on October 22, 2022.

Officers executed the search warrant on October 23, 2022. Two weapons were recovered from AO B.L.'s home. Detective J.W. recovered a CMC Derringer serial #74173A firearm from the enclosed front porch of the home. Detective J.B. recovered a loaded CPX-2 SCCY 9mm handgun with no round in the chamber and six rounds in the magazine from under the living room couch. It is alleged that AO B.L. and his mother and father had both firearms under their possession and control. The weapons were submitted for analysis by Detective Allan Ortiz. The People submitted a request for a DNA analysis on the firearms, but the laboratory has not yet completed their analysis.

This Court issued a temporary Order of Protection on October 24, 2022, directing AO B.L. to stay away from Hutchinson Central Technical School and Principal Gabrielle Marquecho. AO B.L. was given verbal instructions in the Courtroom as to the contents of the Order and was served a copy of the Order.

On November 10, 2022, AO B.L. went to Hutchinson Central Technical School to try out for the basketball team, in violation of the temporary Order of Protection. Additionally, AO B.L. had been suspended from the school. AO B.L.'s appearance at the school after a Temporary Order of Protection was entered caused fear among the teachers and staff.

On November 16, 2022, Probation submitted a Notice of Failure to Comply stating that AO B.L. has failed to comply with the Release Under Supervision ("RUS") Program. AO B.L. had called his Probation Officer on November 15, 2022 to say that his ankle monitor was too tight on his leg, it snapped while he was putting on his pants, and he did not mean for that to happen. Upon inspection of the ankle monitor, Probation found that there were obvious signs of tampering with the ankle monitor. AO B.L. told Probation that the ankle monitor started coming apart weeks ago; he never reported the issue, but he had been "picking at it" since it came off. Probation alleged that due to concerns for the safety of the community and ability to adequately supervise someone who "is seemingly trying to circumvent the conditions of his release", AO B.L. was no longer appropriate for RUS, and Probation requested that RUS be revoked. This Court scheduled a court appearance immediately after receiving the Notification. Probation's request was denied, as it was unclear to the Court whether AO B.L. had actually tampered with the ankle monitor. A new ankle monitor was ordered to be put on AO B.L.

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.

This Court finds that extraordinary circumstances exist that should prevent the transfer of this action to Family Court. While no one was physically hurt, no shots were fired, there was no property damage and the AO did not lead other youths into committing the crimes before this Court, the facts here are unusual and heinous. In this incident, AO B.L. threatened to shoot up his school. Days later, upon execution of an ERPO Warrant, he was found in possession of firearms at his home. On October 24, 2022, this Court granted a Temporary Order of Protection directing AO B.L. to stay away from his school. AO B.L. was advised of the contents of this Order of Protection, and he was personally served with a copy of the Temporary Order of Protection while in Court. Two and a half weeks later, AO B.L. violated the Temporary Order of Protection when he went to his school to try out for the basketball team. The People allege that the AO's threats, coupled with his operable firearm, willful disregard of Court orders, and removal of his ankle monitor presents an extreme danger to the community. Defense counsel responds to this argument stating that AO B.L.'s behavior, especially in violating the Temporary Order of Protection, demonstrates the immaturity and lack of thoughtful thinking of a juvenile with a developing brain. This Court understands that the mind of any sixteen-year-old is not fully developed. However, this Court finds that the aggravating circumstances of this case outweigh the mitigating circumstances.

The People have the burden of demonstrating that there is strong proof AO B.L. is not amenable to or would not benefit from the heightened services provided in Family Court. The [*3]People rely on AO B.L.'s juvenile delinquency history to argue that AO B.L. would not benefit from the heightened services provided in Family Court. This Court cannot take into account an AO's prior juvenile delinquency adjudications. People v J.J., 74 Misc 3d 1223(A) (NY Co Ct 2022). However, this Court can consider the fact that AO B.L. tampered with his ankle monitor while on RUS, and willfully violated the Order of Protection that was entered against him by this Court. This behavior demonstrates that AO B.L. is not likely to benefit from the rehabilitative services provided in Family Court.

Understanding that the intent of Raise the Age is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished, this Court finds that extraordinary circumstances exist relative to AO B.L. The People have met its burden to prevent removal of the action to Family Court. The matter against AO B.L. shall remain in the Youth Part of Erie County.

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