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 October 10, 2022; the Attorney Affirmation in Opposition by Giovanni Genovese, Esq., dated October 13, 2022, on behalf of AO J.M.; 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 J.M. was charged under FYC-72810-22/001 with one count of Burglary in the Second Degree, a class C felony under Penal Law §140.25(02); one count of Grand Larceny in the Fourth Degree, a class E felony under Penal Law §155.03(4); one count of Criminal Possession of Stolen Property in the Fourth Degree, a class E felony under Penal Law §165.45(02); Criminal Possession of Stolen Property in the Fifth Degree, a class A misdemeanor under Penal Law §165.40; and Petit Larceny, a class A misdemeanor under Penal Law §155.25. On September 12, 2022, Accessible Magistrate Shannon M. Heneghan arraigned AO J.M. and set bail in the amount of $2,500 Cash or Insurance Company Bail Bond. On September 12, 2022, this Court arraigned AO J.M. and set bail in the amount of $2,500 Cash, $2,500 Bond, or $25,000 Partially Secured Appearance Bond with a 10 percent deposit. This Court held a six-day reading on September 16, 2022. 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) and continued AO J.M.’s remand with bail. Findings of Fact The following documents are attached to the People’s Motion: Felony and Misdemeanor Complaints of Police Officer Brittany N. Slomba, dated September 10, 2022, and a Supporting Deposition of Complainant S.N., dated September 10, 2022. According to these documents, on September 10, 2022, at approximately 5:16 AM, S.N. awoke to an intruder inside her bedroom at 327 L. Drive. The intruder was wearing a black hoodie. S.N. yelled, “HEY WHAT ARE YOU DOING”. The intruder immediately ran down the stairs and fled S.N.’s home. S.N. noticed that her shoulder purse, credit card, New York State Identification, and $10 were missing. Police Officers observed AO J.M. at 221 L. Drive. He was wearing a black hoodie, and he was in possession of S.N.’s purse and credit card. 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. 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 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 finds that extraordinary circumstances do not exist that should prevent the transfer of this action to Family Court. This was not an easy decision. Ultimately, this Court finds that highly unusual and especially heinous facts have not been proven. AO J.M.’s alleged behavior here is undoubtably fear-provoking. At 5:16 AM, the Victim awoke to AO J.M. — an uninvited individual wearing a hooded sweatshirt — in her bedroom. AO J.M. violated the Victim’s sense of safety and security in her own bedroom. However, the People do not allege that AO J.M. led, threatened, or coerced other reluctant youth into committing the crimes before this Court. AO J.M. did not threaten violence. He was not in possession of a weapon or firearm. No one was injured during this incident, and no real property was damaged. This Court must also consider whether AO J.M. is amenable to or would benefit in any way from the heightened services in Family Court. AO J.M. has a history in the Erie County Youth Part. On May 26, 2022, he was adjudicated a Youthful Offender and placed on Probation for three years. On September 12, 2022, Probation filed an Affidavit and Supervision Summary alleging that AO J.M. violated the terms of his probation by having police contact on two occasions, continuing to use illicit substances, and testing positive for marijuana. This Court signed a Declaration of Delinquency. That matter is also pending before this Court. It appears that J.M. might have substance abuse issues. Counsel admits that AO J.M. was under the influence of alcohol and/or drugs upon his arrest here. Abuse of controlled substances by an AO is a mitigating circumstance to be considered in deciding Extraordinary Circumstances Motions. This Court also acknowledges Defense counsel’s position that AO J.M. has largely cooperated with the terms of his probation, by attending school and participating in services, and his mother provides a strong support system. Given these circumstances, the Court finds that AO J.M. could benefit from the heightened services provided during the pendency of a juvenile delinquency case and at disposition, especially if placement is an option. The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. After reviewing the totality of this youth’s circumstances, this Court finds that extraordinary circumstances do not exist. The People did not meet its burden to prevent removal of this action to Family Court. The matter shall be removed to Erie County Family Court. This constitutes the opinion, decision, and order of this Court. SO ORDERED. Dated: October 18, 2022
