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 Amanda Raimondi, Esq. (Assistant District Attorney), dated September 19, 2023; the Affidavit in Opposition by Giovanni Genovese, Esq. on behalf of AO B.L., dated September 26, 2023; the Affidavit in Opposition by Crystal L. M. Repka, Esq., on behalf of A.S., dated October 3, 2023; no responsive papers having been received on behalf of AO A.M.; 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., AO A.S. and AO A.M. were charged under FYC-72657-23, FYC-72668-23, and FYC-72656-23, respectively, with having committed one count of Criminal Possession of Stolen Property in the Third Degree, in violation of Penal Law § 165.50, a class D felony. The AOs were arraigned on August 22, 2023 and released on their own recognizance. At the six-day reading on August 25, 2023, the People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c) to remain in Youth Part. The People indicated that they would make a motion under CPL § 722.23(1) requesting this matter not be removed to Family Court. Amanda [*2]Raimondi, Esq. (Assistant District Attorney), filed a Notice of Motion and Supporting Affidavit dated September 19, 2023, on behalf of the People. Attorney Giovanni Genovese filed an Affidavit in Opposition on behalf of AO B.L., dated September 26, 2023. Attorney Crystal Repka filed an Affidavit in Opposition on behalf of A.S., dated October 3, 2023. No responsive papers were received on behalf of AO A.M.

It is alleged on July 31, 2023, at approximately 7:15 AM, Police Officers responded to a call reporting a crashed 2020 Lincoln Navigator and two females walking with one sock each. The vehicle allegedly crashed at 5:45 AM. Police found AO A.S. on the ground near the vehicle with an apparent injury from the crash. Police observed AO B.L. and AO A.M. walking around with one sock each; they matched the description in the call. The People allege that both AO B.L. and AO A.M. admitted to being inside the 2020 Lincoln Navigator that crashed earlier that day. The vehicle was reported stolen by its owner on July 29, 2023.

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 [*3]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 is extremely concerned about the extraordinary number of vehicles being stolen; however, the facts of this case are not exceptional or unique. The AOs did not act in an especially cruel or heinous manner. The People do argue that any one of the AOs led, threatened, or coerced the other AOs into committing the crimes before the court. The amount of damage to the vehicle is not specified, and the physical injury to AO A.S. is not detailed in the People's Motion. The People do not allege that any of the AOs were in possession of a weapon or firearm during this incident. AO B.L.'s attorney alleges that the stolen vehicle had a total of eight occupants and none of the three charged here drove the vehicle. There is no evidence that these AOs knew that the vehicle was stolen.

The People have not proven that the AOs here will not be amenable to or would not benefit in any way from the heightened services in Family Court. None of these AOs have other Youth Part matters pending. The People do not allege that any of these AOs have a criminal history. Both AO B.L.'s attorney and AO A.S.'s attorney argue that this was their clients' first involvement with the law, and there have been no transgressions since the date of the incident.

The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. The People have not met their burden to prevent removal of this action to Family Court. Extraordinary circumstances do not exist here. This matter shall be removed to Family Court.

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