THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. QUASHAWN DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, the People's motion is denied, and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]). Initially, we agree with defendant that his waiver of the right to appeal is invalid. County Court's oral colloquy failed to inform defendant that he would ordinarily retain the right to appeal and that the waiver of his right to appeal was separate and distinct from his guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Henderson, 247 AD3d 1495, 1496 [4th Dept 2026]; see generally People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied 589 US 1302 [2020]). Although the written waiver appropriately characterized the scope of the appellate rights waived, “the court failed to confirm that [defendant] understood the contents of the written waiver[ ]” (Thomas, 34 NY3d at 566).

Defendant contends that the court abused its discretion in granting the People's motion pursuant to CPL 722.23 (1) (b) to prevent removal of defendant's case to Family Court. We agree. Defendant was arrested for his alleged involvement in an open-air drug market and subsequently indicted, along with 17 codefendants, on charges including conspiracy in the second degree (Penal Law § 105.15), criminal possession of a controlled substance in the first degree (§ 220.21 [1]), and criminal possession of a weapon in the second degree (§ 265.03 [3]). Defendant was 17 years old at the time of the underlying offenses and therefore an adolescent offender (see CPL 1.20 [44]). Inasmuch as some of the counts in which defendant was named charged him with violent felonies, the court was initially required to “review the accusatory instrument and any other relevant facts” to determine if one or more aggravating factor in defendant's conduct was present, such as the “display [of] a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of [an] offense” (CPL 722.23 [2] [b], [c] [ii]). Here, the record indicates that the court undertook that requisite review and determined that the People had failed to prove the presence of any of the specified aggravating factors by a preponderance of the evidence (see CPL 722.23 [2] [c]).

The court was therefore required to order removal of the action to Family Court unless the People successfully moved to prevent removal by establishing “that extraordinary circumstances exist that should prevent the transfer” (CPL 722.23 [1] [d]). Such a motion must “contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing” (CPL 722.23 [1] [b]). Whether extraordinary circumstances exist to preclude removal to Family Court is a discretionary determination to be made by a court after consideration of “the totality of the facts and circumstances” (People v Guerrero, 45 NY3d 659, 667 [2026]). A court exercising that discretion, however, should give consideration to the legislative intent that retention should be the exception and not the rule, i.e., that only “extremely rare and exceptional cases” involving “highly unusual and heinous facts” and “strong proof that the young person is not amenable [to] or would not benefit in any way from the heightened services in the family court” should be precluded from removal (see NY Assembly Debate on 2017 NY Assembly Bill A3009C, Apr. 8, 2017, at 38-39; see also People v Lloyd F., 245 AD3d 69, 75-76 [2d Dept 2025]).

Here, the People's supporting affirmation relied heavily on the nature of the charges against defendant. As noted above, however, each count on which defendant was indicted also named 17 codefendants with no factual allegations that would permit parsing out defendant's specific conduct in, for example, possessing either a controlled substance or a weapon. Although defendant was also alleged to have committed conspiracy in the second degree, he was not alleged to have committed any overt act in furtherance of that conspiracy. The prosecutor also failed to state that the few factual allegations that were included in the People's supporting affirmation were based on the prosecutor's “personal knowledge” (CPL 722.23 [1] [b]) and that conclusion is not a reasonable inference from the affirmation as a whole (see People v J.B., 63 Misc 3d 424, 429 [Westchester County Court 2019]). Instead, there is no indication from what specific sources any information was obtained, no supporting documentation was included with the motion, and no request for a hearing was made (cf. Guerrero, 45 NY3d at 662). Although the People also argued that defendant's previous arrests on similar charges weighed against removal, we note that “reoffense in and of itself” is not “extraordinary” (id. at 666 [internal quotation marks omitted]). The mere fact of a prior charge or charges does not provide evidence of defendant's actual prior conduct, i.e., the specific “illegal or immoral acts,” if any, that might have led to those charges (People v Gray, 84 NY2d 709, 712 [1995]), or whether defendant's conduct constituted “escalating criminal behavior” (Guerrero, 45 NY3d at 666). The People's motion therefore failed to contain sufficient “allegations of sworn fact based upon personal knowledge of [an] affiant” (CPL 722.23 [1] [b]) on which the court could have relied in considering defendant's actual role in the charged offenses in relation to his numerous codefendants, many of whom were adults (see generally People v Aaron VV., 246 AD3d 131, 136 [3d Dept 2025]). We conclude that the court abused its discretion in granting the motion, and we therefore reverse the judgment, vacate the plea, deny the People's motion, and remit the matter to County Court for the entry of an order removing the action to Family Court.

In light of our determination, we do not address defendant's remaining contentions.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court