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 James L. Harrington, Esq. (Assistant District Attorney), dated February 15, 2024; responsive papers dated February 22, 2024 by Michael C. Cimasi, Esq., on behalf of AO J.W.-C.; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

AO J.W.-C. is charged under FYC-70111-24 with one count of Criminal Possession of a Weapon in the Second Degree: Possession of a Loaded Firearm, in violation of PL § 265.03(3) and Criminal Possession of a Weapon in the Fourth Degree, in violation of PL § 265.01(9).

On January 16, 2024, AO J.W.-C. appeared for an arraignment in Youth Part and entered a plea of not guilty. The People conceded that the charges did not meet the requirements of CPL § 722.23(2)(c) to remain in Youth Part and indicated that they would make a motion under CPL Art. 722, § 722.23(1) requesting this matter not be removed to Family Court. AO J.W.-C. was released on RUS, and additionally, the Youth Part Resource Coordinator was appointed.

The decision date of the extraordinary circumstances motion was scheduled for February 29, 2024.

It is alleged that on January 15, 2024, at or around 12:03 AM, Buffalo Police Officers were responding to a report of a robbery when they were flagged down by a victim. The Victim said that he was an Uber driver. He had just dropped off a customer and was on his way home when he saw a man walking in the middle of the road. He slowed down and the man came to his window. The man said something that the Victim did not understand, and the Victim said "what". The man then pulled out a gray handgun and said, "get out of the car." The Victim got out of his car. The man said, "keys" and pressed the gun to the Victim's neck. The man ordered: "wallet and phone". Then the man got into Victim's vehicle and drove away.

Buffalo Police Officers were able to track the location of the Victim's stolen phone to a gas station. Patrol officers went to the gas station and surrounded it. They detained three individuals and arrested two of them: AO J.W.-C. and his co-defendant (AO J.W.-C.'s cousin).

Video surveillance of the gas station showed these three individuals exiting the stolen vehicle and entering a convenience store at the gas station. AO J.W.-C. is recorded putting a Polymer80 9mm Ghost Gun, loaded with one round in the chamber and 10 rounds in the magazine, into his waistband and then placing the firearm among bags of chips on a store shelf. The loaded firearm was later recovered by an officer and submitted to the CPS lab.

AO J.W.-C. is charged with one count of Criminal Possession of a Weapon in the Second Degree: Possession of a Loaded Firearm, in violation of PL § 265.03(3) and Criminal Possession of a weapon in the Fourth Degree, in violation of PL § 265.01(9). AO J.W.-C.'s co-defendant (his cousin) was arrested and charged with Criminal Possession of Stolen Property and Unauthorized Use of a Vehicle.

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 [*2]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.

The People allege that video surveillance of the gas station shows AO J.W.-C. exiting a vehicle that was reported stolen by gunpoint minutes earlier and removing a firearm from his waistband and placing it on a shelf inside the store. The People cite this as an exceptional circumstance, stating any patron of the store could have accessed this loaded weapon, putting everyone in danger. Additionally, the People allege that this AO will not be amenable to the heightened services of Family Court due to his alleged involvement in a robbery and shooting in September, 2023, illustrating that he is not open to modifying his behavior. Finally, the People indicate that AO J.W.-C. does not have any familial support at home, which adds an obstacle for this AO to be compliant with the heightened services of Family Court.

In support of mitigating factors, Defense counsel argues that AO J.W.-C. voluntarily accepted probation services and has remained compliant with the rules and regulations associated therewith, illustrating his willingness and ability to benefit from the heightened services offered by Family Court.

It is not alleged that AO J.W.-C. caused physical injury to anyone. The People have not made any allegations that AO J.W.-C. led or coerced other youths to participate in any crimes.

However, highly unusual and heinous facts have been proven. It is alleged that this AO had a loaded and operable Ghost Gun which had been involved in a robbery at gunpoint, and that he stashed it in that loaded and operable condition in a public place, amongst snacks, easily accessible to children and adults alike. While it is fortunate no one got hurt, that is likely because the police recovered the weapon shortly after it was abandoned. Additionally, the AO does not have support at home sufficient to ensure he adheres to the recommendations of Family Court services. Further, there is evidence to suggest this AO has been involved in another incident involving a loaded weapon. Although that matter remains under investigation, AO J.W.-C.'s [*3]DNA appears to be on that gun as well.

Extraordinary circumstances exist to prevent the transfer of this action to Family Court. The aggravating fsactors outweigh the mitigating circumstances. The People have met its burden to prevent removal of this action to Family Court. This matter shall remain in the Youth Part.

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