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 February 17, 2023. Seth Seegert, Esq. was given the opportunity to file an Attorney Affirmation in Opposition, and did not file any paperwork on behalf of AO B.D. Oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

AO B.D. was charged under FYC-70143-23/001 with one count of Criminal Possession of a Weapon in the Second Degree, under Penal Law § 265.03(3).

On January 20, 2023, this Court arraigned AO B.D. The six-day reading was held on January 24, 2023. The People conceded that the charges did not meet the requirements of CPL § [*2]722.23(2)(c). This Court ordered this action to proceed in accordance with CPL § 722.23(1). AO B.D. was remanded with bail.

The People filed a Motion to Prevent Removal to Family Court on February 17, 2023. The following documents are attached to the People's Motion: Felony Complaint of P.O. J. Michienzi; Transcript of Felony Hearing Testimony of D. Igielinski; Supporting Deposition of Lieutenant J. Pietrzak dated January 24, 2023; Firearms Analysis Report dated January 20, 2023; and Felony Complaint of P.O. M. Kiripolsky dated March 4, 2022.

On January 11, 2023, Buffalo Police Officers J. Slupinski and D. Igielinski were on patrol and observed a U-Haul truck driving erratically. After running the license plate, the Officers realized the truck had been stolen. The Officers attempted to execute a traffic stop, but the vehicle refused to stop for a block. Upon stopping, the Officers observed a thin, black male jump out of the driver's seat and run away. P.O. Igielinski pursued the driver for several blocks but was unable to apprehend him. P.O. Slupinski located a cellphone on the ground directly outside the driver's door of the U-Haul, as well as a firearm approximately 10-15 feet away from the driver's side door, found in the path of the driver's flight. The firearm was seized and submitted to the lab for forensic testing.

A passenger, J.A. was also in the U-Haul, and he was secured by P.O. Slupinski. The passenger, J.A., told the Officer that he connected with AO B.D. via a Facebook account, where AO B.D. used the name "SharkFour Onnat." P.O. Igielinski viewed this Facebook account, which contained pictures of an individual the Officer recognized from prior interactions as AO B.D. Because of prior interactions, P.O. Pietrzak knew that AO B.D. and his friends spent time at 377 Guilford Street, Buffalo. On January 19, 2023 P.O. Pietrzak observed AO B.D. and others leaving 377 Guilford and getting into a taxi. The Officer pursued the taxi, subsequently stopped the taxi, removed AO B.D. from the vehicle, and placed him under arrest.

After the arrest, AO B.D. was brought to police headquarters. There, he abandoned a tea bottle from which he had been drinking. The bottle was seized by Officers and submitted to the forensic lab for a DNA swab. This swab was compared to the firearm that was previously submitted for analysis, and the major DNA profile on the firearm matched the DNA from the bottle. The forensic analysis of the firearm also showed a mixture of DNA from four individuals, including at least one male and one female.

AO B.D. was charged with Criminal Possession of a Weapon, Second Degree, and was arraigned on January 19, 2023.

This alleged offense occurred while AO B.D. was on probation following a conviction from an incident that occurred in September, 2022. In September, 2022 AO B.D. was charged with Criminal Possession of a Weapon, Second Degree for threatening a woman in her home with a gun. He pled guilty and was granted Youthful Offender status at that time. AO B.D was sentenced to six months incarceration followed by five years of post-release supervision.

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 [*3]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.

Although the charge against AO B.D. is a serious charge, the legislature did not include it when specifying charges that would remain in Youth Part. In their argument to establish extraordinary circumstances, the People allege aggravating factors, namely that AO B.D. was driving a stolen vehicle erratically, that he fled Officers who had to pursue him on foot, that he discarded a loaded and operable firearm while fleeing from the police, that an operable weapon [*4]was recovered from the scene, and DNA analysis gives a high probability that the weapon in question belonged to AO B.D. Although these factors are troubling, they do not rise to the level of "cruel or heinous" in determining whether this matter should remain in Youth Part. AO B.D. is not alleged to have engaged in violence and no serious injuries were sustained during this incident. Whereas the People articulate strong details about the charge itself they fail to articulate elements that would make it highly unusual or especially heinous.

However, the People also argue that the Defendant is not amenable to the heightened services of Family Court, and this Court agrees. AO B.D. was arrested on this matter four months after being granted Youthful Offender status and placed on post-release . This case bears similarity to 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 B.D. was on probation for a conviction from September, 2022 where he was charged and pled guilty to Criminal Possession of a Weapon in the Second Degree, the same charge he sustained in the instant matter, after using a gun to threaten a woman in her home. He was given the benefit of Youthful Offender status and was sentenced to six months incarceration followed by five years of post-release supervision. AO B.D.'s current arrest occurred approximately four (4) months after being granted Youthful Offender status and while he was on post-release supervision. This Court finds that AO B.D.'s actions show a blatant disregard for the leniency of the Court in previously granting him Youthful Offender status, and further establishes that he will not be amenable to the services of Family Court. AO B.D.'s history, combined with his disregard for his previous Youthful Offender status is a substantial aggravating factor supporting a determination to keep this matter in Youth Part.

The People met their burden to prevent removal of this action to Family Court. Under the totality of the circumstances, taking into account the absence of mitigating factors and the finding of substantially aggravating factors, this Court finds that extraordinary circumstances exist warranting this case not be removed to Family Court. The matter shall remain in the Youth Part.

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