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 September 27, 2022; the Affirmation in Opposition of the Motion to Prevent Removal by Giovanni Genovese, Esq., dated October 3, 2022, on behalf of AO J.K-D.; the Reply Affirmation and Memorandum of Law in Opposition of the Motion to Prevent Removal, by Dean S. Puleo, Esq., dated October 4, 2022; oral argument and a hearing on the motion having been waived; and due deliberation having been had, the Court finds the following: Procedural History AO D.J. was charged under FYC-72663-22/001 with one count of Criminal Possession of Stolen Property in the Fourth Degree, a class E felony, as defined by Penal Law §165.45(02); one count of Criminal Possession of Stolen Property in the Third Degree, a class D felony, as defined by Penal Law §165.50; one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, as defined by Penal Law §165.05(01). AO J.K-D. was charged under FYC-72665-22/001 with two counts of Criminal Possession of Stolen Property in the Fourth Degree, a class E felony, as defined by Penal Law §165.45(02); one count of Criminal Possession of Stolen Property in the Third Degree, a class D felony, as defined by Penal Law §165.50; one count of Unauthorized Use of a Vehicle in the Third Degree, a class A misdemeanor, as defined by Penal Law §165.05(01); one count of Unlawfully Fleeing a Police Officer, a class A misdemeanor, as defined by Penal Law §270.25; one count of Resisting Arrest, a class A misdemeanor, as defined by Penal Law §205.30; one count of Obstructing Governmental Administration in the Second Degree, a class A misdemeanor, as defined by Penal Law §195.05; and one count of False Impersonation, a class B misdemeanor, as defined by Penal Law §190.23. This Court arraigned AO D.J. and AO J.K-D. on August 29, 2022. AO D.J. was released on his own recognizance with voluntary probation services. AO J.K-D. was remanded and bail was set at $10,000 A and B and $20,000 E at 10 percent. On August 30, 2022, this Court conducted the six-day reading for AO D.J. and AO J.K-D. The People conceded that the charges did not meet the requirements of CPL §722.23(2) (c). This Court ordered this action to proceed in accordance with CPL §722.23(1). A felony hearing was scheduled for AO J.K-D. on September 7, 2022. The People were unable to run the hearing, and AO J.K-D. was released on his own recognizance. Findings of Fact Pursuant to Exhibit A and Exhibit B attached to the People’s Motion, on August 28, 2022, at around 5:00 PM, Mohammed Hanif reported his gray 2011 Toyota Sienna vehicle, valued at approximately $12,000, stolen from the Town of Cheektowaga. Approximately an hour and a half later, Police located the vehicle in the Town of Amherst. Police in a marked vehicle activated their emergency lights and sirens to an attempt to stop the stolen vehicle. AO J.K-D., who was later identified as the driver of the stolen vehicle, ignored the police command to stop. Instead, he sped through a parking lot with pedestrian traffic, then crossed a roadway at a high speed, failing to stop or yield to traffic in the roadway, and caused an “injury accident”. Officers had to physically remove AO J.K-D. from the driver’s seat of the vehicle after the accident. AO J.K-D. then provided a false name to a police officer, and the People allege that he was in possession of two stolen credit cards belonging to Mr. Hanif. AO D.J. was observed in the rear passenger seat of the stolen vehicle when it crashed. Pursuant to the People’s Supporting Affidavit, AO J.K-D. has been arrested on charges related to a stolen vehicle on four other occasions since March 2022. All of those cases were removed to Family Court. AO D.J. was arrested with AO J.K-D. on one of those occasions; that matter was removed to Family Court. Conclusions of Law 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. Under CPL §722.23(1)(b), every motion to prevent removal of an action to Family Court “contain allegations of sworn fact based upon personal knowledge of the affiant”. 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). AO J.K-D. With respect to AO J.K-D., the People have established that extraordinary circumstances exist that should prevent the transfer of this action to Family Court. This is not a basic criminal possession of stolen property charge. Here, AO J.K-D., the driver of a stolen vehicle, ignored a police command to stop, sped through a parking lot with pedestrian traffic, crossed a roadway at a high speed, failing to stop or yield to traffic in the roadway, and caused an “injury accident”. His actions endangered his life, the lives of his co-defendants, other innocent civilian drivers, and the police officers who pursued him. The police had to physically remove him from the vehicle after he crashed the vehicle. See People v. B.T., 73 Misc 3d 1238(A) (NY Co Ct 2021). This was not the first time AO J.K-D. was arrested on charges relating to a stolen vehicle. It was the fifth time he was arrested for this type of crime between March 2022 and August 2022. The four prior actions were removed to Family Court. The Court finds that this is sufficient proof that AO J.K-D. would not be amenable to or would not benefit from further rehabilitative efforts available in Family Court. This Court has considered the mitigating factors raised by Defense Counsel; mainly, that he was the youngest of the individuals charged in this crime, and he is currently placed in the custody of the Office of Children and Family Services, where he receives rehabilitative services. These mitigating factors, when compared to AO J-K-D.’s alleged conduct and history as alleged by the People, does not support removing this case from Youth Part to Family Court. See People v. B.T., 73 Misc 3d 1238(A) (NY Co Ct 2021). After considering the totality of the circumstances for AO J.K-D., and balancing the aggravating and mitigating factors, this Court finds that extraordinary circumstances exist to prevent removal of the action against AO J.K-D. to Family Court. The matter shall remain in the Erie County Youth Part. AO D.J. With respect to AO D.J., this Court finds that the People have not established that extraordinary circumstances exist that should prevent the transfer to Family Court. The facts as alleged against AO D.J. are not cruel or heinous; they do not “go beyond” that which is “usual, regular or customary”. The People do not allege that he led, threatened, or coerced any individuals into committing the crime before this Court. AO D.J. was a passenger in the stolen vehicle, not the driver. The stolen credit cards were not found on AO D.J.’s person. The People have the burden of demonstrating that AO D.J. is not amenable to or would not benefit from the heightened services provided in Family Court. The People failed to overcome this burden. Understanding that the intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished, this Court finds that extraordinary circumstances do not exist relative to AO D.J. The People did not meet its burden to prevent removal of the action to Family Court. The matter against AO D.J. shall be removed to Erie County Family Court. This constitutes the opinion, decision, and order of this Court. SO ORDERED. Dated: October 7, 2022
