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THE MAJORITY CONCLUDED THE ADOLESCENT DEFENDANT’S WAIVER OF APPEAL INCLUDED ANY CHALLENGE TO COUNTY COURT’S DECLINING TO REMOVE THE CASE TO FAMILY COURT; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, affirming the conviction by guilty plea in County Court, over a two-justice dissent, determined the adolescent defendant’s waiver of appeal encompassed County Court’s declining to remove the case to Family Court under CPL 722.23. The majority concluded there was no requirement that the waiver specifically refer to the removal issue. The dissenters argued it was not clear from the record that defendant knowingly and intelligently waived an appellate challenge to the failure to remove the case:

… [A] defendant’s valid waiver of the right to appeal precludes our review of a contention that the court erred in declining to remove the case to Family Court under CPL 722.23. Thus, we are precluded from reaching defendant’s contention with respect to that issue here. * * *

Our dissenting colleagues assert that the otherwise valid waiver of the right to appeal does not preclude our review of one of the … defendant’s contention with respect to the issue of removal to Family Court. … [T]hey assert … that the waiver “does not bar our review” of that issue inasmuch as defendant did not knowingly, intelligently, and intentionally waive his right to challenge the court’s removal determination. We respectfully disagree. We have previously rejected contentions that a “waiver of the right to appeal is invalid because the court failed to identify the precise claims that survived the waiver of appeal” … .  Indeed, a court “ ’need not expressly delineate for a defendant those appellate issues that are foreclosed by a waiver of the right to appeal, and those that survive, in order for the court to obtain a valid appeal waiver’ ” … That is entirely consistent with what the Court of Appeals has repeatedly said on the matter—i.e., that it has “never required any particular litany explaining the finer distinction[s] in appeal waiver colloquies” … .

From the dissent:

… [W]e conclude that defendant’s waiver of the right to appeal does not bar our review of his challenge to the court’s determination under CPL 722.23 because defendant never intended to relinquish his right to challenge the court’s determination concerning his removal to Family Court and certainly did not knowingly and intelligently do so. Defendant’s lack of intent is apparent on this record. Defendant did not waive the opportunity for removal to Family Court under CPL 722.23 (4), and defense counsel opposed the People’s motion to prevent removal. Moreover, at the time of defendant’s plea, defense counsel indicated that he had advised defendant that “limited things would survive [the] waiver of appeal, including . . . if the Court didn’t have jurisdiction.” Defendant now challenges the court’s decision declining to remove this action to Family Court. As defendant’s appellate counsel explained during oral argument, defendant—and, more to the point, defense counsel—believed that challenge to be jurisdictional, and defendant therefore argued that it survives even if his waiver of the right to appeal is valid. People v Ogden, 2025 NYSlipOp 07153, Fourth Dept 12-23-25

Practice Point: The dissent questions the fairness of appeal waivers generally and specifically argues the record in this case does not support the conclusion that defendant intended to waive an appellate challenge to the “failure-to-remove-the-case-to-Family-Court” issue.

 

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