The People having moved pursuant to Criminal Procedure Law, Article 722, §722.23(1), et seq. for an order preventing removal of these actions to the juvenile delinquency part of Erie County Family Court, and upon reading the Notice of Motion and Supporting Affidavit of Ryan A. Emmerling, Esq. (Assistant District Attorney), dated December 29, 2022; the Affidavit by Michael C. Cimasi, Esq., dated January 12, 2023, on behalf of AO I.H.; the Affidavit by Kara A. Buscaglia, Esq., dated January 12, 2023 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: Procedural History On November 23, 2022, AOs A.M., and I.H. were arrested and both charged with one count of Robbery in the Second Degree, a class C felony as defined by Penal Law §110.00, 160.10(2)(a). AO I.H. was charged with an additional count of Robbery in the Second Degree, a class C felony as defined by Penal Law §110.00, 160.10(2)(a). Further, AO A.M. was charged with one count of Attempted Robbery in the Second Degree, a class C felony as defined by Penal Law §110.00, 160.10(1). This Court arraigned the AOs on November 29, 2022. AO A.M. and AO I.H. were both released on their own recognizance, and each accepted voluntary probation services. This Court held a “six-day reading” on December 5, 2022. The People conceded that the charges did not meet the requirements of CPL §722.23(2)(c). This Court ordered these actions to proceed in accordance with CPL §722.23(1). On December 29, 2022, Attorney Ryan Emmerling, on behalf of the People, filed a Notice of Motion requesting that these matters stay in the Youth Part. Attached to the People’s Motion are the following exhibits: Felony Complaints of Detective A. Cavarello dated November 28, 2022; Supporting Deposition of the Victim, Photographs of the interior of Mobil Mini Mart, and Arresting/Booking Reports dated November 29, 2022. Findings of Fact The Felony and Misdemeanor Complaints of Detective A. Cavarello provide that on November 23, 2022, the Victim was working at the Mobil Mini Mart located at 660 Englewood Avenue in the Town of Tonawanda when two men approached him at the counter and placed snacks and drinks in front of him. As the Victim began the checkout process, the men, who were later identified as AO A.M. and AO I.H., grabbed the drinks and snacks off the counter and attempted to leave the store without paying. AO A.M. was able to leave the store with store merchandise, but the Victim grabbed AO I.H. before he could exit and pulled him back to the counter. At this time, AO A.M. re-entered the store and the AOs became physical with the Victim, eventually pushing him into a stack of bottled water. The AOs then attempted to leave the store again. AO A.M. was able to leave the store, however the Victim was able to grab AO I.H. AO A.M. then returned inside the store a second time, and both AOs began punching the Victim’s head. They continued punching him in the head until the Victim fell into a beer and Gatorade display. At this time, AO A.M. and AO I.H. both left the store. The Victim sustained cuts on his head and thumb and had a “bump” on his head due to this incident. Further, the Mobil Mini Mart was littered with beer and snacks, and numerous display shelves and items were knocked over. The AOs were later identified by the Victim, and subsequently arrested on November 29, 2022 and charged with Robbery in the Second Degree. AO I.H. was additionally charged with Attempted Robbery in the Second Degree. 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 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). 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 does not find this incident to be extraordinary. The facts are not highly unusual or especially heinous. The circumstances in this case are not so exceptional as to overcome the presumption that only “one out of 1,000 cases” would remain in the Youth Part and not be removed to Family Court. (Assembly, Record of Proceedings, April 8, 2017, pp. 37-38); see People v. M.M., 64 Misc 3d 259, 268 [NY Co Ct 2019]. Here, the AOs attempted to steal snacks and drinks from the Victim’s store. When the Victim tried to prevent them from doing so, they physically attacked him, repeatedly punching him in the head and face. Further, they damaged property inside the Mobil Mini Mart. Although these actions are reprehensible, especially as to the attack of the Victim, the facts of this incident do not rise to a level that warrants preventing removal. Neither AO displayed a firearm. The People do not allege that either AO committed a series of crimes over multiple days or led, threatened, or coerced other reluctant youth into committing the alleged crime before this Court. Further, there was nothing submitted stating that the Victim suffered “serious physical injury” above cuts and a bump on his head. The People argue that AO A.M. is not amenable to the heightened services and rehabilitative efforts provided in Family Court. Their Motion states that both AOs were reluctant to take responsibility for their actions, which illustrates that they will not be amenable to Family Court services. Counsel for AO A.H. rebuts this notion, stating that her client accepted voluntarily probation services at his first Youth Part appearance. Counsel for AO I.H. also disputes the People’s claim that his client would not be amenable to services, stating that his client has appeared at every appearance, and is amenable to services. The People have failed to overcome the burden of demonstrating that AO A.M. and AO I.H. are not amenable to or would not benefit from the heightened services provided in Family Court. The intent of RTA is that children who are alleged to have committed crimes be rehabilitated rather than incarcerated and punished. Extraordinary circumstances do not exist here, largely because the alleged incident was not highly unusual or especially heinous. The People did not meet its burden to prevent removal of these actions to Family Court. These matters shall be removed to Erie County Family Court. This constitutes the opinion, decision, and order of this Court. SO ORDERED. Dated: January 23, 2023
