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 Herman, Esq. (Assistant District Attorney), dated May 31, 2024; responsive papers by Connor Dougherty, Esq. on behalf of AO D.M., dated June 10, 2024; responsive papers by Daniel Schaus, Esq. on behalf of AO S.M., dated June 10, 2024; responsive papers by Giovanni Genovese, Esq. on behalf of AO S.W., dated June 5, 2024; no responsive papers having been received by Elias Farah, Esq. on behalf of AO D.D.; and no responsive papers having been received by Seth Seegert, Esq. on behalf of AO K.H.; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following:

The above youth are charged as follows: AO D.M. is charged under FYC-71267-24 with one count of Criminal Possession of Stolen Property in the Fourth Degree in violation of Penal Law § 165.45, a class E felony; one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, in violation of Penal Law § 165.05(1); one count of Unlawfully Fleeing a Police Officer, in violation of Penal Law § 270.25, a class A misdemeanor; Reckless Driving, in violation of Vehicle and Traffic Law § 1212, a class U misdemeanor. AO D.M. is also charged under FYC-71274-24 with multiple Vehicle and Traffic Law misdemeanors and violations. AO S.M. is charged under FYC-71364-24 with one count of Criminal Possession of Stolen Property in the Fourth Degree in violation of Penal Law § 165.45, a class E felony, and one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, in violation of Penal Law § 165.05(1). AO K.H. is charged under FYC-71365-24 with one count of Criminal Possession of Stolen Property in the Fourth Degree in violation of Penal Law § 165.45, a class E felony, and one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, in violation of Penal Law § 165.05(1). AO S.W. is charged under FYC-71389-24 with one count of Criminal Possession of Stolen Property in the Fourth Degree in violation of Penal Law § 165.45, a class E felony, and one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, in violation of Penal Law § 165.05(1). AO D.D. is charged under FYC-71405-24 with one count of Criminal Possession of Stolen Property in the Fourth Degree in violation of Penal Law § 165.45, a class E felony, and one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, in violation of Penal Law § 165.05(1).

On May 1, 2024, AO D.M., AO S.M., and AO K.H. were arraigned in Youth Part and released on their own recognizance, having voluntarily accepted probation services. The People conceded the six-day reading, and extraordinary circumstances motions were scheduled. The People indicated that they would make a motion under CPL § 722.23(1) requesting that these matters not be removed to Family Court. On May 3, 2024, this Court arraigned AO S.W. and AO D.D. The People conceded the six-day reading, and both AOs were released on their own recognizance, having voluntarily accepted probation services. The People indicated that they would make a motion under CPL § 722.23(1) requesting that these matters not be removed to Family Court. This Court scheduled a decision on the motion on June 14, 2024. The decision date was adjourned on consent of counsel to June 20, 2024.

AO D.M. was previously charged under FYC-70444-24 with one count of Criminal Possession of Stolen Property in the Fourth Degree, Penal Law § 165.45 for taking his mother's [*2]vehicle without permission. The People state that AO K.H. and AO S.W. participated in this incident but were not charged. AO D.M. was arraigned by this Court on February 28, 2024 and referred to the Erie County Restorative Justice Coalition's Three-Part Series. On May 29, 2024, the People consented to dismiss this matter because AO D.M. had completed the Three-Part Series.

It is alleged that on April 16, 2024, at approximately 10:05 PM, a police officer received an alert for a stolen black Dodge Durango. Thereafter, the Officer saw the Durango pull out of a parking lot; the driver (AO D.M.) looked directly at her. The Officer began following the stolen vehicle in her marked patrol vehicle. She initiated a traffic stop, turning on her overhead lights, and initiating the siren on her vehicle, but the stolen vehicle did not stop. Instead, the stolen vehicle accelerated to an estimated 70 miles per hour in a 35 mile per hour speed limit zone. Due to the excessive speed of the stolen vehicle, the Officer terminated her pursuit of the stolen vehicle, slowing down so that she did not create a hazardous condition for other vehicles on the road. She eventually lost sight of the stolen vehicle. When she arrived at an intersection down the road, she saw that there was an accident with four or five vehicles, and the stolen vehicle was flipped over. While speaking with eyewitnesses to the crash, she recognized the driver of the stolen vehicle (AO D.M.) running southbound. She pursued him on foot. Another officer arrived and assisted her. The two officers surrounded AO D.M. and arrested him in a business's parking lot. Two other officers came to the accident scene and began speaking with eyewitnesses to obtain information about the direction in which AO D.M.'s co-defendants had fled. Based on this information, the officers went behind a drug store dumpster and found a black bubble jacket and ski mask on the ground. They then went to a nearby home, and the homeowners told the officers that there were two black males in their backyard. One officer located AO S.M. hiding at the corner of the homeowner's fence and garage. The officers then headed to an annexing home. They located a young adult male and AO K.H. lying in the grass. AO D.D. and AO S.W. were also found nearby.

Officers determined that AO D.M.'s reckless driving through a red light caused the multiple motor vehicle accident. The People allege that multiple victims sustained physical injuries and property damage due to the crash and provided a statement from one victim. The Victim reported suffering lumbar and cervical sprains and moderate to severe disc herniations; he might need surgery for his injuries. Six weeks after the accident, the Victim said he still had extreme pain in his neck, shoulder, and lower back.

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 [*3]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. 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 determines that extraordinary circumstances exist that should prevent the transfer of FYC-71274-24 and FYC-71267-24 against AO D.M. to Family Court. AO D.M. had police contact twice within six weeks. In Incident One, which occurred on February 12, 2024, AO D.M. was charged with Criminal Possession of Stolen Property in the Fourth Degree, when he allegedly stole his mother's vehicle. AO D.M. completed the three-part restorative justice program, and this matter was dismissed upon the People's motion on May 29, 2024. In Incident Two (the case at issue), AO D.M. was charged with Criminal Possession of Stolen Property in the Fourth Degree again, among other charges. Here, AO D.M. was the driver of a stolen vehicle; he led police on a vehicular pursuit, ran a red light at an intersection and caused a motor vehicle accident. He then ran from the scene, attempting to avoid arrest and responsibility for his actions. People were injured and property was damaged in the crash. The facts here as they relate to AO D.M. go beyond that which is "usual, regular or customary" in stolen car cases. The People met their burden of proving that AO D.M. would not be amenable to and would not benefit from the heightened services in Family Court. Extraordinary circumstances exist to prevent the transfer of the action against AO D.M. to Family Court. FYC-71274-24 and FYC-71267-24 shall remain in Youth Part.

Extraordinary circumstances do not exist to prevent the transfer of the matters against [*4]AO D.M.'s co-defendants (AO S.W., AO K.H., AO S.M., and AO D.D.) to Family Court. These youths were passengers in the stolen vehicle driven by AO D.M. on April 16, 2024. None of these individuals have prior Youth Part matters. The People did not meet their burden of proving that AO S.W., AO K.H., AO S.M., and AO D.D. would not be amenable to and would not benefit from the heightened services in Family Court. To the contrary, defense counsel for AO S.W. writes that AO S.W. is compliant with both the Restoration Society and Gateway Longview, and he is registering for a GED program. AO S.M.'s attorney states that AO S.M. accepted voluntary services with Erie County Probation. Extraordinary circumstances do not exist to prevent the transfer of these actions to Family Court.

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