Waiver of Appellate Review of Raise‑the‑Age Removal Determinations: Commentary on People v. Ogden (2025)

I. Introduction

The Fourth Department’s decision in People v. Ogden, 2025 NY Slip Op 07153 (Dec. 23, 2025), sits at the intersection of two major strands of New York criminal law:

the long‑evolving jurisprudence on waivers of the right to appeal in plea bargains, and
the relatively new “Raise‑the‑Age” framework governing adolescent offenders and the transfer (or “removal”) of their cases from the Youth Part of criminal court to Family Court under CPL 722.23.

The case does not involve a trial; the defendant, an adolescent offender, pleaded guilty to first‑degree burglary and first‑degree assault and signed an appeal waiver. On appeal, he mounted a multi‑front challenge: attacking the validity of his appeal waiver and guilty plea, contesting the Youth Part’s refusal to remove the case to Family Court, challenging the denial of youthful offender treatment and the severity of his sentence, and seeking waiver of mandatory surcharges.

The majority affirms in all respects, using the case to clarify—and to some extent harden—Fourth Department doctrine in three crucial ways:

Reaffirming that a facially overbroad written appeal waiver can be cured by a proper oral colloquy that tracks the Model Appeal Waiver Colloquy.
Holding expressly that a valid appeal waiver precludes appellate review of a Youth Part court’s denial of removal to Family Court under CPL 722.23, and that such removal determinations are not jurisdictional in nature.
Confirming that an appeal waiver bars appellate challenges to youthful offender determinations, sentence severity, and the failure to waive surcharges and fees under CPL 420.35(2‑a).

A vigorous dissent by two Justices (Ogden and Nowak, JJ.) argues that the removal issue was not knowingly and intelligently surrendered and, on the merits, that the trial court abused its discretion in finding “extraordinary circumstances” sufficient to keep this adolescent offender in criminal court rather than Family Court. The dissent would reverse, vacate the plea, and order removal.

Together, the opinions expose fault lines in New York law on appeal waivers and Raise‑the‑Age practice and deepen an emerging inter‑departmental split over whether CPL 722.23 removal issues survive an appeal waiver.

II. Factual and Procedural Background

A. The charges and plea

The defendant, Javyon J. Ogden, was prosecuted in the Youth Part as an adolescent offender for serious violent conduct. He ultimately pleaded guilty in Wayne County Court (Healy, J.) to:

Burglary in the first degree (Penal Law § 140.30[4]); and
Assault in the first degree (Penal Law § 120.10[1]).

Although the memorandum does not set out full facts, the dissent describes the defendant’s role as that of a getaway driver; he did not personally enter the premises or inflict harm, but the underlying events involved serious injuries to a person inside the dwelling.

B. Youth Part and motion to prevent removal to Family Court

Because the defendant was an adolescent offender, his case began in the Youth Part of Superior Court. Under the Raise‑the‑Age statute, CPL 722.23, adolescent offender cases are presumptively removed to Family Court unless the People establish “extraordinary circumstances” justifying retention in the Youth Part.

Here, the People made a motion to prevent removal under CPL 722.23(1). The County Court granted the motion, keeping the case in the Youth Part of criminal court. The dissent underscores several mitigating facts that the court allegedly failed to weigh properly:

the defendant had no prior criminal history;
he had never received Family Court services;
he had strong familial support; and
his role was limited to driving, without personally inflicting harm.

C. Appeal waiver and sentencing

As part of the plea bargain, the defendant:

executed a written waiver of his right to appeal, which—on its face—described the waiver in absolute, overbroad terms, and
engaged in an oral appeal‑waiver colloquy in court; the majority notes that this colloquy followed the official New York Model Colloquy on waivers of the right to appeal.

The defendant was sentenced in accordance with the plea agreement. At sentencing, the court also imposed the standard mandatory surcharge and fees. The defendant later argued that these should have been waived under CPL 420.35(2‑a).

D. Issues raised on appeal

On appeal to the Fourth Department, the defendant contended:

The waiver of the right to appeal was invalid (monosyllabic answers and a defective written form).
His guilty plea was not knowing, voluntary, and intelligent.
The Youth Part court erred in declining to remove the case to Family Court under CPL 722.23.
The court erred by not granting him youthful offender treatment.
His sentence was unduly severe.
The court should have waived the mandatory surcharge and fees under CPL 420.35(2‑a).

III. Summary of the Opinion

A. The majority’s holding

The majority (Lindley, J.P., Curran, Ogden, Nowak and Keane, JJ., with Ogden and Nowak dissenting) affirms the judgment of conviction. Its key conclusions are:

Appeal waiver valid. The defendant knowingly, voluntarily, and intelligently waived his right to appeal. His monosyllabic responses do not undermine the waiver, and any defect in the overbroad written form was cured by the proper oral colloquy.
Plea‑voluntariness challenge unpreserved. Although such a challenge survives a valid appeal waiver, the defendant failed to move to withdraw his plea or to vacate the judgment of conviction, so the issue is unpreserved; the Court declines interest‑of‑justice review.
Appeal waiver bars review of Raise‑the‑Age removal determination. The Court explicitly holds that a valid waiver of the right to appeal precludes appellate review of a Youth Part court’s decision to deny removal to Family Court under CPL 722.23. It clarifies that such removal issues are not jurisdictional and can be waived.
Appeal waiver bars other sentencing‑related issues. The valid appeal waiver precludes review of:
- the denial of youthful offender treatment;
- the severity of the sentence; and
- the contention that mandatory surcharges and fees should have been waived under CPL 420.35(2‑a).

In doing so, the majority relies heavily on prior Fourth Department decisions (Blount, Wood, Giles, Burch, Stackhouse, etc.) and on Court of Appeals guidance in Thomas, Lopez, Sanders, and related cases.

B. The dissent’s position

The dissent, authored by Ogden and Nowak, JJ., would reverse. Their reasoning unfolds in two stages.

Appeal waiver does not encompass removal challenge. Even assuming the appeal waiver is generally valid, the dissent concludes that the defendant did not knowingly and intelligently waive his right to challenge the Youth Part’s decision to prevent removal to Family Court. Key points include:
- Waiver must be an intentional relinquishment of a known right (Alsens, Harris).
- The record shows that:
  - the defendant did not waive the statutory “opportunity for removal” under CPL 722.23(4);
  - defense counsel opposed the People’s motion to prevent removal; and
  - counsel advised the defendant that issues concerning jurisdiction would survive the appeal waiver, and believed the removal challenge was such an issue.
- Given the unsettled nature of whether removal issues survive an appeal waiver (citing People v Aaron VV. and other authorities), there is no basis to infer that the defendant understood he was surrendering this particular challenge.
Merits: “extraordinary circumstances” not established. On the merits, the dissent finds an abuse of discretion in granting the People’s motion to prevent removal. They reason that:
- Under CPL 722.23(1)(d)–(e), removal must be prevented only upon a finding of “extraordinary circumstances” supported by factual findings and, where practicable, conclusions of law.
- Legislative history shows that “extraordinary circumstances” is meant to describe “extremely rare and exceptional cases”, requiring examination of the totality of the circumstances, including relevant mitigating as well as aggravating factors.
- In this case, crucial mitigating factors (no prior record, no prior Family Court services, strong family support, limited role as driver) were not properly weighed.
- The defendant’s behavior reflects the kind of adolescent decision‑making that the Raise‑the‑Age reforms were intended to address predominantly in Family Court, not criminal court.
The dissent would therefore:
- reverse the judgment;
- vacate the plea;
- deny the People’s CPL 722.23(1) motion to prevent removal; and
- remit for entry of an order removing the action to Family Court.

The dissent also offers a broader critique of New York’s “tortured jurisprudence” on appeal waivers and questions the systemic wisdom of routine, broad waivers in nearly every plea bargain.

IV. Detailed Analysis

A. The appeal waiver: validity and scope

1. Validity of the waiver in Ogden

The majority’s validity analysis tracks familiar Court of Appeals doctrine.

Standard: A waiver of the right to appeal is enforceable only if it is knowing, intelligent, and voluntary (People v Lopez, 6 NY3d 248, 256 [2006]; People v Thomas, 34 NY3d 545, 559–60 [2019]).
Monosyllabic responses. The defendant responded in “monosyllabic affirmative responses” (“yes”) during the colloquy. The Court reiterates that such brevity does not, by itself, render the waiver invalid, citing:
- People v Burch, 234 AD3d 1246, 1246–47 (4th Dept 2025)
- People v Allen, 174 AD3d 1456, 1457 (4th Dept 2019)
- People v Harris, 94 AD3d 1484, 1485 (4th Dept 2012)
These decisions collectively hold that as long as the court correctly distinguishes the right to appeal from the trial rights automatically forfeited by a guilty plea, a series of “yes” answers—especially where the defendant is represented by counsel and indicates understanding—can suffice.
Defective written waiver cured by oral colloquy. The written waiver form in Ogden incorrectly described the waiver as an absolute bar to appeal. Under Thomas and Lopez, such language is problematic because it suggests no appellate review whatsoever is possible, even for non‑waivable issues.
- The majority acknowledges the defect but holds that the oral colloquy “cured” it, because it “followed the appropriate model colloquy.”
- They rely on:
  - People v Tandle, 238 AD3d 1503, 1504 (4th Dept 2025)
  - People v Williams, 228 AD3d 1316, 1317 (4th Dept 2024)
  - Thomas, 34 NY3d at 563

In effect, the Court confirms that Fourth Department practice allows:

a formally overbroad written waiver, as long as
the trial judge’s oral explanation accurately describes the limited nature of the waiver and its distinction from other rights forfeited by the plea.

2. The Court’s refusal to require issue‑by‑issue enumeration

The majority’s central doctrinal move comes in response to the dissent’s insistence that the defendant never expressly intended to waive his right to appeal the Youth Part’s denial of removal.

The dissent’s logic, simplified, is:

waiver must be an intentional relinquishment of a known right (Alsens, Harris);
the record shows the defendant actually litigated—rather than waived—the opportunity for removal;
counsel believed the removal issue to be jurisdictional and thus non‑waivable; and
nothing in the colloquy indicates the defendant knew he was surrendering this specific challenge.

The majority rejects that approach, emphasizing:

In People v Wood, 217 AD3d 1407, 1408 (4th Dept 2023), and People v Giles, 219 AD3d 1706, 1706–07 (4th Dept 2023), the Court had already “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.”
People v Parker, 151 AD3d 1876, 1876 (4th Dept 2017), makes explicit that a trial 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.”
The Court anchors this in the Court of Appeals’ statements in:
- Thomas, 34 NY3d at 559 (“we have never required any particular litany explaining the finer distinctions in appeal waiver colloquies”);
- People v Sanders, 25 NY3d 337, 341 (2015);
- Lopez, 6 NY3d at 256.

In other words, once:

the defendant understands that the right to appeal is separate and distinct from trial rights forfeited by pleading guilty, and
acknowledges, with counsel’s advice, that he is giving up that right,

the waiver is enforceable in its full, ordinary scope. The trial court is not required to go issue‑by‑issue and say, for example:

“You understand you are giving up your right to challenge the denial of your suppression motion;”
“You understand you are giving up your right to challenge the denial of removal to Family Court;” etc.

The majority underscores this with a reductio: if the dissent’s view were correct, “any defendant who unsuccessfully moved for the suppression of evidence” could argue that because the suppression issue was not specifically mentioned in the colloquy, it remains reviewable despite an otherwise valid appeal waiver. That “is entirely at odds with existing precedent.”

B. Whether CPL 722.23 removal decisions are waivable and non‑jurisdictional

1. The key new holding: removal challenges are barred by a valid appeal waiver

The majority expressly states that a valid appeal waiver bars appellate review of the Youth Part’s denial of removal to Family Court under CPL 722.23:

“Although not explicitly stated in the published memorandum, we previously concluded in People v Blount … that 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.”

This sentence does important work:

It confirms that Blount, 239 AD3d 1426 (4th Dept 2025), should be read as having already adopted this rule, even if it did so implicitly.
It uses Ogden to explicitly announce the rule: in the Fourth Department, Raise‑the‑Age removal challenges do not survive a valid appeal waiver.

2. Removal determinations are not jurisdictional

The dissent suggests that removal issues might be jurisdictional in nature and thus non‑waivable. The majority pushes back strongly:

They note that by holding in Blount that removal issues did not survive a valid waiver, the Court “necessarily concluded that the issue was not jurisdictional in nature.”
They cite People v Jacobs (4th Dept Dec. 23, 2025), decided the same day, as further confirmation that the question is “not unsettled before this Court.”
They contrast this with People v King, 147 AD3d 1540, 1541 (4th Dept 2017), and Thomas, 34 NY3d at 566, where jurisdictional defects (or analogously fundamental issues) survive both waivers and failures to preserve.

The distinction the majority is drawing is:

Truly jurisdictional defects (like a court lacking subject‑matter jurisdiction, or a conviction for a nonexistent crime) cannot be waived and can be raised at any time.
Forum‑allocation or procedural determinations—including whether a Youth Part should retain a case or send it to Family Court under CPL 722.23—are not jurisdictional in this strict sense, and thus can be waived by a valid appeal waiver.

The dissent, citing Artibee v Home Place Corp., 28 NY3d 739, 747 (2017), and Henry v New Jersey Tr. Corp., 39 NY3d 361, 372 (2023), notes that “jurisdiction is a word of elastic, diverse, and disparate meanings” and suggests the question is not settled statewide. The majority essentially narrows the term to its non‑waivable, subject‑matter core and labels CPL 722.23 removal simply a waivable procedural or discretionary choice of forum.

3. Waiver of removal opportunity vs. waiver of appellate review

The dissent emphasizes that the defendant did not waive the opportunity for removal under CPL 722.23(4); he actively opposed the People’s motion to prevent removal. The majority replies that this fact is irrelevant to whether he later waived appellate review of the resulting removal determination:

“Waiver of the opportunity for removal under CPL 722.23 (4) and the waiver of the right to appeal are separate concepts.”

Conceptually:

CPL 722.23(4) waiver concerns whether a youth consents to having the case remain in criminal court instead of being transferred to Family Court at the outset, often as part of plea negotiations.
Appeal waiver concerns whether, after the court rules on removal (and other issues), the defendant gives up the right to ask an appellate court to review those rulings.

The majority treats these as analytically distinct and sees no inconsistency in:

a defendant litigating for removal at the trial level, then
waiving appellate review of that adverse determination as part of an appeal waiver that is not issue‑specific.

C. Voluntariness of the plea and preservation

The defendant’s challenge to the voluntariness of his guilty plea technically survives his appeal waiver. This follows settled law:

People v McMurtry, 224 AD3d 1310, 1310 (4th Dept 2024)
People v Shaw, 133 AD3d 1312, 1313 (4th Dept 2015)

However, such a challenge must be preserved by:

a motion to withdraw the plea before sentencing, or
a CPL 440.10 motion to vacate the judgment.

Here, the defendant did neither, so the Fourth Department deems the voluntariness issue unpreserved (citing People v Fernandez, 218 AD3d 1257, 1259 [4th Dept 2023]; People v Toney, 153 AD3d 1583, 1584 [4th Dept 2017]) and explicitly declines to exercise “interest of justice” review under CPL 470.15(3)(c).

This preserves the familiar hierarchy: even issues that survive an appeal waiver (like certain plea‑voluntariness arguments) still face ordinary procedural hurdles such as preservation requirements.

D. Other issues foreclosed by the appeal waiver

1. Youthful offender (YO) treatment

The defendant argued he should have been treated as a youthful offender. The majority holds that this claim is barred by the appeal waiver, citing:

Burch, 234 AD3d at 1247;
People v Stackhouse, 214 AD3d 1303, 1304 (4th Dept 2023);
Allen, 174 AD3d at 1457.

These cases stand for the proposition that a valid appeal waiver generally forecloses appellate review of discretionary YO determinations, absent some independent jurisdictional or constitutional defect.

2. Severity of sentence

Likewise, the defendant’s standard “excessive sentence” challenge is squarely precluded by the waiver, consistent with longstanding precedent:

Lopez, 6 NY3d at 255–56 (valid appeal waiver waives the right to review the severity of the sentence);
Burch, 234 AD3d at 1247.

3. Waiver of surcharges and fees under CPL 420.35(2‑a)

CPL 420.35(2‑a) authorizes a sentencing court to waive certain mandatory surcharges and fees based on a defendant’s inability to pay and other factors. The defendant argued the court should have forborne those financial obligations.

The majority holds that this claim too is barred by the appeal waiver, aligning the Fourth Department with:

People v Germinario, 237 AD3d 743, 743 (2d Dept 2025);
People v Antoine B., 215 AD3d 496, 496 (1st Dept 2023);
People v Naquan H., 213 AD3d 426, 427 (1st Dept 2023).

Those cases treat challenges to the imposition or non‑waiver of surcharges as among the ordinary sentencing issues that fall within the sweep of a valid appeal waiver.

E. The dissent’s critique of appeal‑waiver doctrine and practice

Beyond the specific facts of Ogden, the dissent offers a pointed critique of New York’s broader approach to appeal waivers.

1. Appeal waivers as a problematic staple of plea bargaining

Drawing on Judge Wilson’s partial dissent in Thomas (34 NY3d at 587), the dissent describes the jurisprudence on appeal waivers as “tortured” and observes:

Appeal waivers are now “part and parcel of plea bargaining” and are “required as part of nearly every plea” (citing People v Batista, 167 AD3d 69, 81 [2d Dept 2018, Scheinkman, P.J., concurring]).
Rather than fostering finality, they often prolong litigation by spawning disputes about the validity and scope of the waiver itself.
They frequently foreclose meritorious arguments, which appellate courts internally review anyway when screening cases—with the paradoxical result that strong claims may be barred while weaker ones are informally evaluated but never publicly decided.

The dissent suggests this undermines the integrity of the criminal justice system, where the goal of finality must yield to the need for “effective judicial review” and ensuring that defendants actually receive the protections to which they are entitled.

2. Knowing and intelligent waiver of this right in this context

The dissent emphasizes that:

Under Seaberg, 74 NY2d 1, 11 (1989), and Thomas, 34 NY3d at 560, a waiver must be not only voluntary but also knowing and intelligent, taking into account “the age, experience and background of the accused.”
“An appellate waiver is effective only when ‘a defendant has a full appreciation’ of its consequences” (quoting Bradshaw, 18 NY3d 257, 264 [2011]).
For any waiver of a right, the defendant must have “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it” (quoting Patterson v Illinois, 487 US 285, 292 [1988], which itself quotes Moran v Burbine, 475 US 412, 421 [1986]).

Applying these principles, the dissent reasons:

The defendant did not waive the statutory opportunity for removal, opposed the People’s motion to prevent removal, and continued to believe (through counsel’s advice) that the removal challenge would remain available on appeal.
Given the unsettled law on whether CPL 722.23 removal issues survive appeal waivers, it is impossible to say that the defendant “fully appreciated” that he was surrendering that specific right when he agreed to the general appeal waiver.
There is a “presumption against waiver” of fundamental rights (People v Harris, 61 NY2d 9, 17 [1983]); the record must show an “intentional relinquishment or abandonment of a known right or privilege.” The dissent finds no such record evidence for the removal issue.

The dissent thus maintains that even if appeal waivers are generally enforceable, this particular defendant did not knowingly and intelligently waive his right to challenge the Youth Part’s removal decision.

F. “Extraordinary circumstances” under CPL 722.23

Although the majority does not reach the merits of the removal issue, the dissent provides a detailed merits analysis worth reviewing.

1. Statutory framework and legislative history

CPL 722.23(1)(d)–(e) provides that:

Absent “extraordinary circumstances,” adolescent offender cases shall be transferred to Family Court after a preliminary assessment.
A motion by the People to prevent removal must be denied unless the court finds such “extraordinary circumstances” and issues written or oral findings of fact and, where practicable, conclusions of law.

The dissent notes that “extraordinary circumstances” is undefined in the statute, but its meaning emerges from legislative history, particularly the Assembly debate over the 2017 Raise‑the‑Age bill (A3009‑C). That debate indicates:

The Legislature intended that retention in criminal court be reserved for “extremely rare and exceptional cases.”
The court must look at “all the circumstances of the case, as well as all of the circumstances of the young person, including both mitigating and aggravating factors.”

These principles have been reflected in recent appellate cases:

People v Aaron VV., — AD3d —, 2025 NY Slip Op 05018, *3 (3d Dept 2025) (retention in Youth Part appropriate only in “extremely rare and exceptional” cases; removal is presumptively favored);
People v Lloyd F., — AD3d —, 2025 NY Slip Op 04583, *4–*6 (2d Dept 2025) (emphasizing adolescent misjudgment and legislative presumption favoring Family Court disposition).

2. Application to the defendant’s circumstances

The dissent finds that the County Court’s determination fell short of this standard:

Failure to weigh mitigating factors. The court focused on the serious nature of the offense (aggravating factor) but allegedly failed to meaningfully consider:
- no prior criminal history;
- no prior Family Court involvement or services;
- strong family support; and
- limited participatory role (getaway driver, not the direct assailant).
Legislative intent. The defendant’s conduct, while serious, “exhibited the very characteristics of adolescent decision‑making … that warrant the sensitive treatment of youth in the justice system” (Lloyd F., 2025 NY Slip Op 04583, *6) and falls within the range of behavior the Legislature “presumed would be more appropriately addressed in Family Court” (id. at *5).
Comparison to other cases. The dissent contrasts this case with People v Guerrero, 235 AD3d 1276, 1277 (4th Dept 2025), where the young person’s role and conduct were more directly violent and thus more plausibly “extraordinary.”

Taken together, the dissent concludes that the People failed to establish extraordinary circumstances, and that the County Court abused its discretion by preventing removal. The dissent’s proposed remedy—vacating the plea and ordering removal—reflects the view that the improper retention in criminal court tainted the plea bargaining process itself.

V. Precedents and Authorities in Context

Ogden sits within—and contributes to—the following clusters of authority:

A. Appeal waivers generally

People v Seaberg, 74 NY2d 1 (1989): Established the basic enforceability of negotiated appeal waivers as a means of promoting finality and efficient resolution of criminal cases, provided they are voluntary, knowing, and intelligent.
People v Lopez, 6 NY3d 248 (2006): Clarified that appeal waivers must be separate from the guilty plea and may not be described as an absolute bar to appellate review; nonetheless, valid waivers bar most routine appellate claims, including excessive sentence arguments.
People v Bradshaw, 18 NY3d 257 (2011): Emphasized the need to ensure that a defendant understands the nature of the appeal waiver and its consequences; mere recitation of formulaic words is insufficient without substantive comprehension.
People v Sanders, 25 NY3d 337 (2015): Upheld broad appeal waivers where properly described, re‑affirming that only a narrow class of fundamental, jurisdictional, or constitutional defects survive.
People v Thomas, 34 NY3d 545 (2019):
- Majority: Condemned forms and colloquies that depict appeal waivers as absolute, but declined to impose a rigid, script‑like “particular litany” for valid waivers.
- Wilson, J., dissenting in part: Critiqued the difficulty of ensuring truly knowing waivers; Ogden’s dissent leans heavily on this perspective.

B. Fourth Department’s appeal‑waiver practice

People v Wood, 217 AD3d 1407 (4th Dept 2023); People v Giles, 219 AD3d 1706 (4th Dept 2023); People v Parker, 151 AD3d 1876 (4th Dept 2017): These cases reject the notion that the trial court must enumerate each specific right or issue being waived. They underpin Ogden’s refusal to treat the removal issue as specially exempted from the waiver’s reach in the absence of explicit carve‑outs.
People v Burch, 234 AD3d 1246 (4th Dept 2025): Holds that monosyllabic responses do not invalidate appeal waivers and that such waivers preclude challenges to YO decisions and sentence severity.
People v Williams, 228 AD3d 1316 (4th Dept 2024); People v Tandle, 238 AD3d 1503 (4th Dept 2025): Emphasize that defects in written waiver forms are cured by proper oral explanations following the Model Colloquy.

C. Raise‑the‑Age and CPL 722.23

People v Blount, 239 AD3d 1426 (4th Dept 2025): Implicitly held (now made explicit in Ogden) that appeal waivers bar CPL 722.23 removal challenges.
People v Aaron VV., — AD3d —, 2025 NY Slip Op 05018 (3d Dept 2025): Stresses that retention in the Youth Part should be reserved for “extremely rare and exceptional” cases, apparently treating removal issues as especially weighty; the dissent cites it to show the unsettled nature of the waiver question.
People v Lloyd F., — AD3d —, 2025 NY Slip Op 04583 (2d Dept 2025): Provides a detailed framework for assessing extraordinary circumstances and underscores that adolescence itself and its attendant impulsivity support routing most such matters to Family Court.
Matter of Clark v Boyle, 210 AD3d 463 (1st Dept 2022): Addresses Youth Part/Family Court transfer issues in a different procedural posture, cited to show the complexity and importance of forum allocation under Raise‑the‑Age.
People v Guerrero, 235 AD3d 1276 (4th Dept 2025): An example where more aggravated facts justified retaining an adolescent offender’s case in the Youth Part, used by the dissent as a contrast to Ogden’s relatively limited role.

D. Waiver theory and jurisdiction

Alsens Am. Portland Cement Works v Degnon Contr. Co., 222 NY 34 (1917); Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175 (1982): Classic civil cases defining waiver as an intentional relinquishment of a known right, emphasizing the centrality of intention.
People v Harris, 61 NY2d 9 (1983): Recognizes a presumption against waiver of fundamental rights and adopts the “intentional relinquishment of a known right” standard, echoed in the dissent.
Artibee v Home Place Corp., 28 NY3d 739 (2017); Henry v New Jersey Tr. Corp., 39 NY3d 361 (2023): Observe that “jurisdiction” is an elastic concept, supporting the dissent’s argument that it is not obvious whether CPL 722.23 removal is jurisdictional for waiver purposes.

VI. Complex Concepts Explained

For readers less familiar with New York criminal procedure, the key concepts in Ogden are:

1. Waiver of the right to appeal

In New York, when a defendant pleads guilty, they automatically give up (“forfeit”) many rights, such as the right to a trial and to confront witnesses.
The “right to appeal” is different: it does not automatically disappear upon a guilty plea. Prosecutors often negotiate for a separate, explicit waiver of the right to appeal in exchange for a favorable plea deal.
Such waivers—if knowing, intelligent, and voluntary—bar most appellate challenges. Some claims (e.g., true jurisdictional defects, certain constitutional issues, and narrow categories like some voluntariness challenges) survive.

2. Raise‑the‑Age, adolescent offenders, and the Youth Part

New York’s Raise‑the‑Age reforms restructured how 16‑ and 17‑year‑olds accused of crimes are processed.
Serious cases initially come to a special criminal court called the Youth Part, presided over by a judge trained in both criminal and family law.
Under CPL 722.23, many such cases are supposed to be removed to Family Court, which focuses on rehabilitation and services rather than punishment.

3. CPL 722.23 and “extraordinary circumstances”

Once a case is in the Youth Part, the default is that it moves to Family Court unless the prosecution proves that “extraordinary circumstances” justify keeping it in criminal court.
This is intended to be a rare exception—“extremely rare and exceptional cases”—based on both the severity of the offense and the individual characteristics and history of the youth.
The court must consider not only aggravating circumstances but also mitigating ones: lack of prior record, exposure to trauma, mental health, educational history, family support, etc.

4. Jurisdiction vs. forum choice

Subject‑matter jurisdiction is a court’s power to hear a kind of case at all; defects in subject‑matter jurisdiction usually cannot be waived.
By contrast, choice of forum—for example, whether a case is in Family Court or the Youth Part—can often be shaped by statutes, motions, and waivers.
Ogden treats the CPL 722.23 removal issue as a matter of forum allocation, not as a fundamental limit on subject‑matter jurisdiction, and thus as something that can be surrendered through an appeal waiver.

5. Youthful offender (YO) status

Separate from Raise‑the‑Age, New York law allows certain young defendants (generally under 19 or, in some cases, under 21) to be adjudicated as youthful offenders.
YO adjudication replaces a criminal conviction with a confidential YO finding, reduces the legal consequences, and often carries a lower sentence.
YO determinations are discretionary and, under Ogden and related cases, are among the issues generally surrendered by a valid appeal waiver.

6. Preservation and interest‑of‑justice review

“Preservation” means properly raising an issue in the trial court (usually through a motion or objection) before asking an appellate court to review it.
Plea‑voluntariness claims typically must be preserved by a motion to withdraw the plea or vacate the conviction.
Appellate courts have limited power under CPL 470.15(3)(c) to review unpreserved issues “in the interest of justice,” but they use that power sparingly; the Fourth Department declined to do so in Ogden.

VII. Impact and Future Directions

A. Immediate doctrinal impact in the Fourth Department

Within the Fourth Department, Ogden solidifies several propositions:

Broad scope of valid appeal waivers. Unless a particular issue is jurisdictional or otherwise fundamentally non‑waivable, it is presumptively encompassed in a standard, properly explained appeal waiver.
CPL 722.23 removal issues are waivable. Challenges to the Youth Part’s denial of removal to Family Court do not survive a valid appeal waiver. Defense counsel must either negotiate an explicit carve‑out or litigate the removal issue fully before the plea, recognizing that appellate review will likely be foreclosed.
Written form defects can be cured orally. Even if written waivers overstate their breadth, courts may rely on compliant Model Colloquy explanations to save the waiver.

B. Tension with Raise‑the‑Age policy goals

The majority’s approach has practical implications for the Raise‑the‑Age scheme:

Removal decisions are central to the Legislature’s intent to route most adolescent offenders to Family Court.
If such decisions are routinely insulated from appellate review by broad appeal waivers, the statutory presumption favoring Family Court may be undermined in practice.
The dissent’s concern is that the combination of:
- routine inclusion of appeal waivers in plea bargains;
- limited trial‑level records on removal determinations; and
- lack of appellate review,
could result in a de facto narrowing of Raise‑the‑Age protections beyond what the Legislature intended.

C. Inter‑departmental divergence and potential for Court of Appeals review

Ogden intensifies a developing split among the departments:

The Fourth Department now clearly treats CPL 722.23 removal issues as waivable and generally barred by valid appeal waivers (Blount, Jacobs, and now Ogden).
The Second and Third Departments, as indicated by decisions like Lloyd F. and Aaron VV., emphasize the extraordinary nature of cases that should remain in Youth Part and appear more open to robust appellate oversight of removal decisions, though they have not always confronted the precise waiver question in the same way.

This divergence—especially when coupled with the dissent’s jurisdictional arguments—creates a strong likelihood that the Court of Appeals will eventually be called upon to clarify:

whether CPL 722.23 removal determinations are jurisdictional or waivable;
whether, and to what extent, appeal waivers may foreclose appellate scrutiny of Youth Part retention in Raise‑the‑Age cases; and
whether additional colloquy requirements (beyond the current Model Colloquy) are necessary for truly knowing and intelligent waivers in this specialized context.

D. Practical guidance for defense and prosecution

Practitioners in the Fourth Department should draw several concrete lessons from Ogden:

Defense counsel should:
- Recognize that signing a standard appeal waiver will almost certainly bar appellate review of removal determinations, YO rulings, sentencing severity, and surcharge‑waiver issues.
- Consider negotiating express carve‑outs (e.g., preserving the right to appeal the removal decision) when those issues are particularly important, and insist that such carve‑outs be reflected both in the written waiver and the oral colloquy.
- Ensure that their clients understand that appeals are not categorically barred, but that specific categories of issues will be unavailable if they sign a broad waiver.
Prosecutors may:
- Rely on Ogden to insist that standard appeal waivers encompass removal, YO, and surcharge claims;
- invoke Ogden when opposing appeals that seek to relitigate Raise‑the‑Age removal after a plea bargain.
Trial judges should:
- Continue to use the Model Appeal Waiver Colloquy, but be alert to cases—particularly complex Raise‑the‑Age matters—where additional explanation may be necessary to ensure that a young defendant actually understands the consequences of the waiver.
- In removal hearings under CPL 722.23, create a robust record of both aggravating and mitigating factors and articulate clear findings of fact and conclusions of law, recognizing that appellate scrutiny (where not waived) is increasingly detailed.

VIII. Conclusion

People v. Ogden is a significant Fourth Department decision that does two things at once: it entrenches a broad, formalist understanding of appeal waivers and, in doing so, narrows the circumstances under which appellate courts will oversee Raise‑the‑Age removal decisions.

On one side, the majority emphasizes finality and doctrinal consistency: once a properly explained, general appeal waiver is entered, it sweeps in almost all non‑jurisdictional issues, including removal to Family Court, YO determinations, sentence severity, and surcharge waivers. The written waiver’s overbreadth is forgiven by a compliant oral colloquy; the court need not list the specific claims being surrendered; and Raise‑the‑Age removal is treated as a waivable, non‑jurisdictional matter.

On the other side, the dissent underscores the tension between such broad waivers and both the presumption against waiver of fundamental rights and the policy objectives of Raise‑the‑Age. It views appeal waivers as too often foreclosing meritorious claims and sees the denial of removal in this case as inconsistent with the Legislature’s directive that only “extremely rare and exceptional” cases remain in criminal court.

The case thus crystallizes an emerging question for New York’s highest court: how to reconcile the systemic interest in finality through appeal waivers with the individualized, youth‑centered protections promised by Raise‑the‑Age. Until that reconciliation occurs, Ogden will stand in the Fourth Department as a strong precedent for enforcing broad appeal waivers against adolescent offenders, even on issues that go to the heart of where, and how, they are to be judged.