The People having moved pursuant to Criminal Procedure Law, Article 722, § 722.23(1), et seq. for an order preventing removal of these actions to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion and Supporting Affidavit of Amanda L. Raimondi, Esq. (Assistant District Attorney), dated August 4, 2023; the Affirmation in Opposition to People's Motion to Prevent Removal to ECFS by David Sarkovics, Esq., dated August 17, 2023, on behalf of AO A.P.; the Reply Affirmation in Opposition by Seth Seegert, Esq., dated August 21, 2023, having been received on behalf of AO A.W.; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

On July 7, 2023, AOs A.P. and A.W. were arrested and charged with one count of Criminal Possession of a Controlled Substance, a class C felony as defined by Penal Law § 220.09(1), 20.00; one count of Criminal Possession of a Machine Gun, Second Degree, a class C felony as defined by Penal Law §§265.03(1A), 20.00; and one count of Criminal Possession of a [*2]Firearm, a class E felony as defined by Penal Law §§265.01-b, 20.00. In addition to the foregoing, AO A.W. was charged with Criminal Possession of a Controlled Substance, a class C felony as defined by Penal Law § 220.09(1), 20.00.

The AOs were arraigned by Accessible Magistrate LoTempio on July 7, 2023. Both AOs were remanded.

The AOs appeared for arraignment in Youth Part on July 10, 2023. This Court set bail as follows: $15,000 cash, 10% of $40,000 Partially Secured Surety Bond, $15,000 Insurance Company Bail Bond. If released on bail, the AOs were to be released under probation supervision, with Court-imposed conditions.

This Court held a "six-day reading" on July 13, 2023. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c). This Court ordered these actions to proceed in accordance with CPL § 722.23(1). The felony hearing was also scheduled on July 13, 2023. However, the People were unable to run the hearing, and the AOs were released on their own recognizance.

On August 4, 2023, Attorney Amanda Raimondi, on behalf of the People, filed a Notice of Motion requesting that these matters stay in Youth Part. Attached to the People's Motion are the following exhibits: Felony Complaints of Officer Michael Lehner dated July 7, 2023, Forensic Laboratory Firearm Reports, dated July 12, 2023, and Seized Drug Analysis Report. Counsel for AO A.P. filed responsive papers on August 17, 2023, and Counsel for AO A.W. filed responsive papers on behalf of A.W. on August 21, 2023.

The Felony Complaints provide that on July 7, 2023, Buffalo Police Officers executed a search warrant of a property located at 39 C. St., Buffalo, New York. During the execution of the warrant, Officers observed multiple individuals exiting the premises out of a side window at 39 C. St. and fleeing to the neighbor's yard. AO A.P., AO A.W., and one adult co-defendant were apprehended in the neighbor's yard. Two more adult co-defendants were apprehended after jumping a fence in the neighbor's yard. Officers searched AO A.W. and recovered a clear knotted plastic bag containing suspected cocaine from his front left pants pocket. Upon a sweep of the neighboring yard, Officers recovered three knotted, clear bags containing suspected cocaine, a Glock 17 9mm loaded with 18 rounds in the magazine and equipped with a Switch, and a Glock 43 9mm with an unloaded magazine. A scale containing drug residue was discovered inside 39 C. St.

The substances and firearms were submitted for forensic laboratory inspection. The substance recovered from the plastic baggie in AO A.W.'s pocket was determined to be fentanyl and ANPP (controlled substances). The weight of the substance was greater than ½ ounce. The substances in the three bags recovered from the neighboring yard were confirmed to be cocaine. Both Glocks were discovered to be operable.

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 reviewed 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 [AOs] 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.

The Court must assess whether the facts as alleged against AO A.P. and AO A.W. are highly unusual or extremely out of the ordinary. During the execution of a search warrant, Officers observed multiple individuals exiting the premises out of a side window and fleeing to the neighbor's yard. AO A.P., AO A.W., and one adult co-defendant were apprehended in the neighbor's yard. Two other adult co-defendants were apprehended nearby. Officers also found three plastic bags containing cocaine and two operable firearms, one of which was loaded, in the neighbor's yard. Additionally, Officers found a scale containing drug residue inside the premises [*3]of the search warrant location. These facts are extremely troublesome. Between the scale, the clear plastic baggies containing cocaine, fentanyl and ANPP, and the firearms, it appears that the defendants here had supplies necessary to sell drugs.

However, the People do not allege that the guns recovered in the yard were possessed or even handled either AO. The People do not allege that either AO used these weapons in furtherance of any crime. AO A.W. and AO A.P. were apprehended with three adult co-defendants. The People do not allege that either AO was acting as a ringleader in any capacity relating to the drug possession. The People do not allege that anyone was physically injured during this incident. No property was destroyed. The People do not allege that either AO committed a series of crimes over multiple days or led, threatened, or coerced other reluctant youth into committing the alleged crime before this Court.

There is one important fact that distinguishes AO A.W.'s circumstances from AO A.P.'s circumstances. No illegal substances or controlled substances were found on AO A.P. Thus, this Court finds that the facts as alleged against AO A.P. do not meet the burden to retain the case in Youth Part. Additionally, the People failed to overcome the burden of demonstrating that AO A.P. is not amenable to or would not benefit from the heightened services provided in Family Court.

To the contrary, a clear plastic bag containing fentanyl and 4-anilino-N-phenen-ethylpiperidine was found on AO A.W.'s person — a felony weight quantity of these controlled substances was found in his pants pocket. Fentanyl is extremely potent. It makes drugs cheaper, more powerful, more addictive, and more dangerous. It is often mixed with cocaine. People can be unaware that their drugs are laced with fentanyl, and this becomes extremely dangerous. Even a small amount of fentanyl can kill a person. (See CDC.gov/stopoverdose/f entanyl/index.html). For these reasons, the facts as alleged against AO A.W. are exceptional and go beyond that which is usual, regular, or customary. Given the seriousness of the alleged crimes, the People met their burden to show that AO A.W. would not benefit from the rehabilitative efforts provided in Family Court. His circumstances need to be addressed by the Youth Part of a Superior Court.

The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. Extraordinary circumstances do not exist here for AO A.P., but they do exist for AO A.W. AO A.P.'s matter shall be removed to Erie County Family Court, and the case against AO A.W. shall remain in Youth Part.

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