Split NY appeals court upholds burglary, assault convictions

In a split decision, a state appeals court has affirmed burglary and assault convictions.

Defendant Javyon J. Ogden pleaded guilty in July 2023, before Wayne County Court Judge Richard M. Healy, to first-degree burglary, and first-degree assault.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, voted 3-2 to affirm the convictions.

“Contrary to defendant’s contention, the record establishes that (Ogden) knowingly, voluntarily, and intelligently waived his right to appeal,” the majority wrote.

“Further, we note that, although the written waiver form executed by defendant incorrectly portrays the waiver as an absolute bar to the taking of an appeal and was therefore defective, the oral colloquy … cured the defect in the written waiver,” the majority ruled.

Ogden’s appellate attorney, Bradley E. Keem, claimed the plea was not “knowingly, intelligently, and voluntarily entered.”

“Although a challenge to the voluntariness of the plea survives the valid waiver of the right to appeal, defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction,” the majority wrote.

The majority declined to exercise its power to review the contention in the interest of justice.

Justices E. Jeannette Ogden and Henry J. Nowak dissented and voted to reverse the convictions.

“In our view, defendant’s contention that County Court erred in declining to remove defendant’s case to Family Court is not encompassed by his waiver of the right to appeal. We further conclude that the court erred in granting the People’s motion to prevent removal of the action to Family Court,” Ogden and Nowak wrote.

The minority contends that Ogden did not relinquish his challenge to the court’s removal determination as part of his waiver of the right to appeal.

“We conclude that defendant’s waiver of the right to appeal does not bar our review of his challenge to the court’s determination … 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,” they wrote.

“At no point in our record is there any indication that defendant intended to waive an opportunity for his case to proceed in Family Court, and we do not believe that, at the time he agreed to the appeal waiver, he knowingly and intelligently waived his right to challenge the court’s ruling on the People’s motion to prevent removal,” they wrote.

Ogden and Nowak concluded that Ogden “did not voluntarily, knowingly, and intelligently waive his right to challenge the court’s determination on the People’s motion to prevent removal to Family Court,” they wrote.

“We further conclude that the court abused its discretion in granting the People’s motion to prevent removal to Family Court,” they wrote.

“We would therefore reverse the judgment, vacate the plea, deny the People’s motion pursuant … to prevent removal of the action to Family Court, and remit the matter to County Court for the entry of an order removing this action to Family Court,” they wrote.

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