People v Neyshaliz M. V. - 2026 NY Slip Op 04581
People v Neyshaliz M. V.
2026 NY Slip Op 04581
July 24, 2026
Appellate Division, Fourth Department
Nowak, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v
NEYSHALIZ M. ., DEFENDANT-APPELLANT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on July 24, 2026
301 KA 24-00044
Present: Lindley, J.P., Curran, Ogden, Nowak, And Delconte, JJ.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (SABRINA A. BREMER OF COUNSEL), FOR DEFENDANT-APPELLANT.
BRIAN P. GREEN, DISTRICT ATTORNEY, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Julie M. Hahn, J.), rendered December 8, 2023. The judgment adjudicated defendant a youthful offender.
Nowak, J.
[*1]
It is hereby ORDERED that the adjudication so appealed from is reversed on the law, the plea is vacated, and the matter is remitted to Monroe County Court for further proceedings in accordance with this opinion.
Opinion by Nowak, J.: Defendant appeals from a youthful offender adjudication based upon her plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). On appeal, defendant contends that County Court (Romeo, A.J.) erred in determining that she was disqualified from removal to Family Court pursuant to CPL 722.23 (2) (c) (ii). We agree.
I.
In the early morning hours of January 11, 2023, defendant, then 17 years old, called her ex-boyfriend and told him she ran away from home. Shortly thereafter, he picked her up and drove her to a motel to spend the night. According to the ex-boyfriend, while in the parking lot, defendant "showed [him] a black handgun between her jacket and waist." After checking in, they drove to a nearby gas station and convenience store to get food, where they became embroiled in an argument. The ex-boyfriend was asked to leave and went back to the motel to check out. When he returned to pick up defendant, police officers were there. The ex-boyfriend spoke to the officers outside and informed them that defendant had a firearm on her. The officers approached defendant inside the store and ordered her to remove her hands from her pockets. When she did so, an officer observed a loaded magazine in her hand and the handgun in her waistband. Defendant was handcuffed, and the officer seized the handgun and ammunition.
Defendant was charged by a two-count indictment with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [3]). Given that defendant was 17 years old at the time the charged offenses [*2]were allegedly committed, the People sought to prevent removal to Family Court on the ground that defendant "displayed a firearm . . . in furtherance of such offense[s]" (CPL 722.23 [2] [c] [ii]), arguing that defendant "displayed" the weapon by showing it to her ex-boyfriend, and that she did so in furtherance of the charged offenses (see Penal Law §§ 265.02 [3]; 265.03 [3]). The court agreed with the People that defendant was disqualified from removal to Family Court on that basis.
Thereafter, defendant pleaded guilty in County Court (Hahn, J.) to a single count of criminal possession of a weapon in the second degree and waived her right to appeal, but explicitly excluded from the scope of the waiver the prior removal determination.
II.
A.
New York's passage of the Raise the Age Law in 2017 raised the presumptive age of criminal responsibility in the state to 18 years of age; 16-year-olds and 17-year-olds charged with felonies are now classified as adolescent offenders (see CPL 1.20 [44]) who will be prosecuted in the "youth part" of a superior court (CPL 722.10 [1]), unless and until their cases are removed to Family Court (see CPL 722.23). "The statute creates a presumption of removal to Family Court for adolescent offenders, subject to listed exceptions" (People v Lloyd F., 245 AD3d 69, 71 [2d Dept 2025]; see CPL 722.23 [1] [a]; [2] [a], [c]). Different exceptions may apply depending upon the severity of the offense; generally, for nonviolent offenses, the People may move to prevent removal only upon a showing that "extraordinary circumstances exist that should prevent the transfer of the action to family court" (CPL 722.23 [1] [d]).
However, "[w]here the defendant has been charged with a class A non-drug felony or a violent felony" (Lloyd F., 245 AD3d at 71; see CPL 722.23 [2] [a]), the district attorney may seek to prevent removal to Family Court on any of three grounds set forth in CPL 722.23 (2) (c). The court shall review the accusatory instrument and schedule an appearance within six days of arraignment to determine whether any of the exceptions apply (see CPL 722.23 [2] [a], [b]). At that appearance, the People have the burden to prove the existence of one or more of the exceptions by a preponderance of the evidence (see CPL 722.23 [2] [c]). If they meet that burden, the court must deny removal to Family Court, stating its determination "in writing or on the record," including findings of fact and any conclusions of law (CPL 722.23 [2] [d]).
B.
Here, defendant was charged with a violent felony (see Penal Law § 70.02 [1] [b]), and thus the People could prevent removal to Family Court without a formal motion under one of the CPL 722.23 (2) (c) exceptions, i.e., as relevant here, that defendant "displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of [the charged] offense[s]" (CPL 722.23 [2] [c] [ii]; see Penal Law §§ 265.02 [3]; 265.03 [3]).
We agree with defendant that, even assuming, arguendo, that she "displayed" the weapon when she showed it to her ex-boyfriend, the People failed to prove that she did so "in furtherance of" the charged offenses (CPL 722.23 [2] [c] [ii])FN1. While the dissent seeks to define "in [*3]furtherance of" as merely having a "logical nexus" between the display and the charged offense—a definition borrowed from the felony murder context (see People v Henderson, 25 NY3d 534, 541 [2015])—the People make no such argument on appeal. Moreover, the Court of Appeals has not adopted one singular definition of "furtherance" in the criminal context (compare People v Arroyo, 93 NY2d 990, 992 [1999], with Henderson, 25 NY3d at 541), and has emphasized that the statutory language should be interpreted in light of the legislative "purpose of the [statute]" (Henderson, 25 NY3d at 541). While the legislative history in Henderson reflected that "the purpose of the felony murder statute was to broaden liability for deaths that occur during the commission of certain enumerated felonies" (id.), the legislative history underpinning the Raise the Age Law reflects precisely the opposite. As the Second Department noted in Lloyd F., "the legislative intent [of the Raise the Age Law] was for the 'overwhelming bulk of the cases' to be 'promptly transferred from the adult court to the family court' . . . Only 'extremely rare and exceptional cases' would remain in the Youth Part of criminal court" (Lloyd F., 245 AD3d at 75).
In light of the foregoing, we agree with the People and defendant that, in the context of removal under CPL 722.23 (2) (c) (ii), "furtherance" must be given its ordinary meaning (see People v Versaggi, 83 NY2d 123, 129 [1994]) and be defined as "the act of furthering: advancement" (Merriam-Webster.com Dictionary, furtherance); to advance an offense, one must carry out an act that makes the offense more likely to occur (see generally Arroyo, 93 NY2d at 992). Here, the People contend that by displaying the gun to her ex-boyfriend, defendant "took positive steps to ensure that [he] knew that she possessed a handgun" and that her display of the weapon "emphasized her control of the handgun."
Contrary to the People's argument, under the facts presented here, defendant did not "further" her possession of the weapon merely by displaying it to her ex-boyfriend, even if she did so to emphasize her control of the handgun FN2. Every display of a handgun emphasizes control by the person possessing it, and thus every display would always further the charged offense. So too with the dissent's proposed construction. Every display of a weapon provides evidence of possession—it is not possible to display the weapon without possessing it—and thus there would always be a "logical nexus" between a display and the possessory offense (Henderson, 25 NY3d at 541). Either reading would effectively render meaningless the separate statutory requirement that the display "further[ ]" the charged offense (CPL 722.23 [2] [c] [ii]). Had the legislature wished to do so, it could have required that the People demonstrate only that the adolescent offender "displayed" a designated weapon, and stopped there, without also requiring that the offender did so "in furtherance of" the charged offense (CPL 722.23 [2] [c] [ii]). That language must be given effect and interpreted to require something more than merely displaying the weapon (see McKinney's Cons Laws of NY, Book 1, Statutes § 231).
We note that the Second Department appears to interpret CPL 722.23 (2) (c) (ii) as applying only where a weapon was displayed "in furtherance of another crime" (Lloyd F., 245 AD3d at 79 [emphasis added]). We would disagree with such an interpretation, insofar as we could conceive of a possible situation where the display of a weapon furthered a defendant's continued possession of that weapon. Indeed, the statute is clear and unambiguous that removal is not permissible where, following a review of the accusatory instrument, the People prove that defendant "displayed a firearm . . . in furtherance of such offense[s]" (CPL 722.23 [2] [c] [ii]), i.e., the offenses set forth in the accusatory instrument.
However, that is not the case before us. Here, absent any additional proof that defendant's display somehow advanced her possession of the weapon—something above and beyond merely emphasizing her control of the weapon—we conclude that the court erred in determining that the People met their burden under CPL 722.23 (2) (c) (ii).
III.
Accordingly, we reverse the adjudication, vacate the plea, and remit the matter to County Court for further proceedings consistent with this decision (see generally People v Jacobs, 244 AD3d 1711, 1717 [4th Dept 2025]). In light of our determination, defendant's remaining contention is academic.
All concur except Curran, J., who dissents and votes to affirm in the following memorandum: The sole issue to be resolved on this appeal concerns whether County Court (Romeo, A.J.) properly determined that defendant was disqualified from having her case removed to Family Court under CPL 722.23 (2) (c) (ii) on the basis that the People established, by a preponderance of the evidence, that she "displayed a firearm . . . as defined in the penal law in furtherance of such offense[s]" (emphasis added) charged in the indictment—here, criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [3]). In reversing, the majority concludes that the court erred in that regard, vacates defendant's plea, and remits for further proceedings. I respectfully dissent and vote to affirm inasmuch as I conclude that the plain statutory language of CPL 722.23 (2) (c) (ii) permits disqualification under the circumstances of this case, and the record here supports the conclusion that the People met their burden of establishing that removal here was unwarranted under that provision.
The underlying facts of this case are not disputed. On the day in question, while standing in the parking lot of a Red Roof Inn, the then-17-year-old defendant told her ex-boyfriend that she possessed a loaded firearm, and proceeded to show him a black handgun located between her jacket and waist. A couple of hours later, following an argument between the couple at a gas station and convenience store, the ex-boyfriend informed police officers that defendant possessed a gun. The officers stopped defendant inside the store and, after directing her to show them her hands, ultimately recovered from her a loaded magazine and—critically—the same handgun she had previously showed her ex-boyfriend. The recovered handgun was defaced.
As a consequence of the foregoing, the indictment charged defendant with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] [possession outside of home or place of business]) and criminal possession of a weapon in the third degree (§ 265.02 [3] [defaced firearm]). Because defendant was 17 years old at the time the charged offenses were allegedly committed, under the recently enacted "Raise the Age" law (see generally L 2017, ch 59, § 1, part WWW, § 1-a, codified at CPL art 722), defendant was considered an "adolescent offender" whose case was presumptively to be removed to Family Court under CPL 722.23 (1). [*4]The People, however, sought to prevent removal of the case under CPL 722.23 (2) (c) (ii), arguing that they had established that defendant displayed the firearm recovered by the police, in furtherance of the charged offenses, when she showed it to her ex-boyfriend in the motel parking lot. Defendant opposed the People's request to prevent removal arguing, relevantly, that the People failed to establish that her alleged display of the handgun was done "in furtherance of" the charged offenses. In particular, she argued that the People could not meet their burden with respect to the requirement that the display of the handgun was "in furtherance of" a charged offense because she was "only charged with gun possession and [consequently] there is no other offense that would be 'furthered' " (emphasis added). When the parties subsequently appeared in court, defendant reiterated that same argument, among other things, specifically emphasizing that there needed to be another offense for the display of the firearm to further, and that "just merely possessing a gun in and of itself is not in the furtherance of" the charged offenses.
After hearing from both parties, the court granted the People's request to preclude removal of defendant's case to Family Court. It specifically concluded that the People "met their burden and . . . established by the preponderance of the evidence that . . . defendant did display a firearm . . . in furtherance of the offense[s] [with] which she is charged." As relevant here, defendant subsequently pleaded guilty in County Court (Hahn, J.) to one count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and this appeal ensues.FN3
CPL article 722 is the relevant codification of the "Raise the Age" law enacted by the legislature in 2017. Pursuant to that law, the legislature raised the age of criminal responsibility to 18 years of age and, in addition, categorized individuals charged with felonies at the ages of 16 and 17 as adolescent offenders (see CPL 1.20 [44]). Criminal cases involving adolescent offenders "are presumptively removed from the newly created youth part of superior court to Family Court" (People v Guerrero, — NY3d —, —, 2026 NY Slip Op 00826, *2 [2026]; see CPL 722.10 [1]; 722.23 [1], [2]). As relevant here, however, "[w]here . . . a defendant is charged with a violent felony as defined in Penal Law § 70.02, the youth part retains the case upon a determination that" (Guerrero, — NY3d at —, 2026 NY Slip Op 00826, *2) the People "proved by a preponderance of the evidence . . . one or more of [three exceptions] as set forth in the accusatory instrument" (CPL 722.23 [2] [c]). Those exceptions are where "the defendant (i) 'caused significant physical injury to a person other than a participant in the offense'; (ii) 'displayed a firearm, shotgun, rifle or deadly weapon' in furtherance of the offense; or (iii) [*5]engaged in certain unlawful sexual conduct" (Guerrero, — NY3d at —, 2026 NY Slip Op 00826, *2, quoting CPL 722.23 [2] [c] [i]-[iii]). If none of those exceptions apply, "the case is removed to Family Court unless, upon a motion by the People, the youth part determines that 'extraordinary circumstances exist that should prevent the transfer of the action to' Family Court" (id. at —, 2026 NY Slip Op 00826, *2-3, quotingCPL 722.23 [1] [d]).FN4
III.
There is no dispute that defendant here was charged with a violent felony (see Penal Law § 70.02 [1] [c]) and, therefore, the People could prevent removal of her case to Family Court if they established the applicability of any of the three aforementioned exceptions contained in CPL 722.23 (2) (c). As noted above, the only issue on appeal is whether the court erred in disqualifying defendant's case from removal to Family Court on the basis that she displayed a firearm in furtherance of the charged offenses (see CPL 722.23 [2] [c] [ii]). The parties do not dispute that the People met their burden of establishing that defendant displayed a firearm, and the majority follows their lead by assuming, arguendo, that she displayed a firearm when she showed her ex-boyfriend the handgun in the motel parking lot. Rather, the majority principally concludes that defendant's display of the handgun here was not in furtherance of the charged offenses because, beyond the mere fact that she displayed the gun, there was no additional evidence "that defendant's display somehow advanced her possession of the weapon," and that merely emphasizing her continued control and possession of the gun did not suffice to show that the People satisfied their burden under CPL 722.23 (2) (c) (ii). In reaching that conclusion, however, the majority has nevertheless expressly rejected defendant's sole argument advanced below—i.e., that the display of the weapon must be done " 'in furtherance of another crime' " (majority op, quoting People v Lloyd F., 245 AD3d 69, 79 [2d Dept 2025]).
I nevertheless conclude, however, even assuming, arguendo, that the majority's proffered theory is properly before this Court, that the majority's theory supporting reversal is without merit, and is not consistent with the relevant statutory text.
Initially, and contrary to defendant's preserved contention, I note my agreement with the majority that the plain text of the statute does not require the display of a firearm in furtherance of some other offense, inasmuch as it must be displayed in furtherance of "such offense" (CPL 722.23 [2] [c] [ii]) as "set forth in the accusatory instrument" (CPL 722.23 [2] [c]). In other words, much like the majority, I also disagree with the interpretation of the relevant provision offered by the Second Department in Lloyd F. (see 245 AD3d at 79). Indeed, I entirely agree that a plain reading of CPL 722.23 (2) (c) (ii)'s language that the display occur "in furtherance of such offense" logically can only refer to offenses alleged in the "accusatory instrument" (CPL 722.23 [2] [c]), here the indictment.FN5
In addition to what the majority has stated on the subject, it is my view that to the extent Lloyd F. supports defendant's position on this appeal, that language is merely dicta. Specifically, I note that Lloyd F. did not involve the application of the statutory provision at issue here—i.e., the exceptions to removal found in CPL 722.23 (2) (c). Rather, Lloyd F. was a case where the Court addressed whether the People were entitled to prevent removal of a case to Family Court through application of the "extraordinary circumstances" standard set forth in CPL 722.23 (1) (d). Consequently, I do not think that Lloyd F. has any authoritative value as applied to this case or to the statutory provision at issue.
Furthermore, there is really no analogy to be made between the exception at issue here and the "extraordinary circumstances" standard. Indeed, any such comparison between the two provisions is strikingly inapt inasmuch as the extraordinary circumstances standard was deliberately left to the discretion of the courts (see Guerrero, — NY3d at —, 2026 NY Slip Op 00826, *3), just as the legislature did, for example, with the definition of "significant physical injury" (see William C. Donnino, Prac Commentaries, McKinney's Cons Laws of NY, CPL 722.10). That is not what we have here inasmuch as the legislature did not expressly grant the courts discretion to preclude removal under CPL 722.23 (2) (c), and therefore we must interpret the subject statute according to the plain meaning of the words used therein.
Having resolved the inapplicability of Lloyd F. to this case, I now address whether the majority's proffered basis for reversal is properly preserved. As indicated above, defendant's sole argument before County Court was that her display of the gun was not done "in furtherance" of the charged offenses because she was "only charged with gun possession and [thus] there is no other offense that would be 'furthered' " (emphasis added). Although defendant also argued that "just merely possessing a gun in and of itself is not in the furtherance of" possessing it, that was merely another way of saying the same thing—i.e., that the display of the firearm must be done in connection with some other substantive offense, not simply possession of the weapon. What defendant decidedly did not do is advance to the court below the more nuanced argument now endorsed by the majority—i.e., that the People did not provide "any additional proof that defendant's display somehow advanced her possession of the weapon . . . above and beyond merely emphasizing her control" thereof. Said another way, at no time did defendant advance the argument that, although there could be circumstances where a defendant could display a gun in furtherance of their possession of the same, the People did not make that evidentiary showing here. Rather, defendant advanced a categorical approach that the majority correctly rejects;FN6 that should be the end of the matter.
On appeal, having rejected the specific argument raised by defendant before the court below—indeed, agreeing with the court's resolution of that issue—the majority should simply affirm the judgment given that the court did not err on the basis advanced before it by defendant. Instead, however, the majority pivots to conclude that defendant's mere display of a weapon to her ex-boyfriend, under the circumstances of this case, did not advance her possession of the gun [*6]and, therefore, did not further her possession within the meaning of CPL 722.23 (2) (c) (ii). Although that argument has been made in defendant's brief on appeal, it is decidedly not the argument raised by defendant before the court below. Consequently, I would argue that the majority's basis for reversal is unpreserved for our review (see CPL 470.05 [2]), and I would not reach that unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). In any event, for the reasons that follow, I also disagree with the majority's approach on the merits.
It is well settled that, in interpreting a statute, it is "fundamental that a court . . . should attempt to effectuate the intent of the [l]egislature" (Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]; see People v Roberts, 31 NY3d 406, 418 [2018]). Of course, "the clearest indicator of legislative intent is the statutory text," and therefore we start with the plain meaning of the language itself (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Moreover, "[c]ourts cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the [l]egislature did not see fit to enact" (People v Corr, 42 NY3d 668, 673 [2024] [internal quotation marks omitted]; see People v Dondorfer, 235 AD3d 71, 77 [4th Dept 2024], affd — NY3d —, 2026 NY Slip Op 00823 [2026]; People v Hardy, 35 NY3d 466, 474 [2020]).
As the majority also notes, in construing the word "furtherance" as used in CPL 722.23 (2) (c) (ii), we are required to give it its "usual and commonly understood meaning" (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001]; see McKinney's Cons Laws of NY, Book 1, Statutes § 232; Dondorfer, 235 AD3d at 76). To that end, I agree with the majority that the word "furtherance" may be defined as "the act of furthering: advancement" (Merriam-Webster.com Dictionary, furtherance). It is not enough, however, to merely define the word "furtherance." We must also consider how that word operates in the context of the specific Penal Law offenses at issue here—i.e., criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [3]). As relevant here, a person is guilty of criminal possession of a weapon in the second degree when "such person possesses any loaded firearm" outside of their home or place of business (§ 265.03 [3]), and "[a] person is guilty of criminal possession of a weapon in the third degree when . . . [s]uch person knowingly possesses[, inter alia, a] firearm . . . which has been defaced for[, among other things,] the purpose of concealment" (§ 265.02 [3]). The Penal Law further defines the word "possess" as meaning "to have physical possession or otherwise to exercise dominion or control over tangible property" (§ 10.00 [8]).
Viewed through that lens, I conclude that defendant's display of the handgun to her ex-boyfriend advanced her commission of the charged possession offenses inasmuch as that act emphasized to the ex-boyfriend that she continued "to exercise dominion or control" over the handgun (Penal Law § 10.00 [8]), and that she did not intend to relinquish her possession or allow it to be taken from her voluntarily (see generally People v K.M., 83 Misc 3d 1269[A], 2024 NY Slip Op 51061[U], *5 [Schenectady County Ct 2024]). Further supporting my position, I note that the Court of Appeals has defined the language "in furtherance of"—albeit in a different context—fairly broadly, requiring merely a "logical nexus" between the two actions in question (People v Henderson, 25 NY3d 534, 541 [2015] [internal quotation marks omitted])FN7. Here, I [*7]conclude that there is such a "logical nexus" between defendant's decision to show off her handgun to the ex-boyfriend—which indicated to him her intent to retain possession of that object while they were together—and her continued possession of the same object until apprehended by the police.FN8
I do not agree with the majority that my proffered interpretation of the word "furtherance" would result in the conclusion that any and all displays of a firearm would always further a charged possession offense. All I am saying is that, under the facts of this case—where defendant actively showed her ex-boyfriend the gun she possessed—the People met their burden under CPL 722.23 (2) (c) (ii). For instance, I would argue that a person does not further a weapon possession offense merely by displaying a gun where that person takes out the gun without any intent to show it to another person. Just taking the gun out in the open—without any intent to show it to another person—while plainly constituting a display of that object does nothing to emphasize the person's desire to maintain dominion and control over that object. Similarly, I would argue that the display of a gun does not further unlawful possession where an individual takes out a gun and shows it to another person with the intent to only retain possession of the gun until they turn it over to the authorities (see generally People v Williams, 36 NY3d 156, 161 [2020]; CJI2d[NY] Temporary and Lawful Possession).
In other words, I do not think it is the inexorable result of my interpretation of CPL 722.23 (2) (c) (ii) that any display of a gun—no matter the circumstances—automatically furthers a possession offense. As always, the context and surrounding circumstances of the display matters. Here, as articulated above, defendant's act of showing her ex-boyfriend that she possessed a handgun by displaying it to him crosses the line to show that she expected to retain dominion and control over the gun while they were together and, thereby, advanced her continued possession of the same.
In my view, it is the majority's approach to defining "in furtherance of" under CPL 722.23 (2) (c) (ii) that would render the language in the statute meaningless to the extent it is more likely to result in the categorical exclusion of all weapon possession offenses from ever being retained in the superior court where a weapon has been openly displayed. Had the legislature intended to [*8]carve out all weapon possession cases like the one at issue here, it certainly could have included language to that effect; the fact that it chose not to do so should caution us against effecting such a carve-out here (see generally Dondorfer, 235 AD3d at 79; Pouch v Prudential Ins. Co. of Am., 204 NY 281, 287 [1912]).
Again, it bears noting that my interpretation of CPL 722.23 (2) (c) (ii) does not translate to mean that there are no significant limitations to the application of that provision to prevent removal to Family Court. As the People note, for example, I agree that removal to Family Court cannot be prevented under the exception at issue here where a defendant is charged with mere constructive possession of a weapon, or where they are merely accessorial to such possession. Rather, removal can only be prevented under CPL 722.23 (2) (c) (ii) where a defendant has actually displayed the weapon while actually possessing it.
IV.
Accordingly, I would affirm the youthful offender adjudication inasmuch as the court properly disqualified defendant from having her case removed to Family Court under CPL 722.23 (2) (c) (ii).
Entered: July 24, 2026
Ann Dillon Flynn
Clerk of the Court
Footnotes
Footnote 1
Contrary to our dissenting colleague's assertion, we conclude that defendant's present contention is preserved. During the motion argument, defense counsel specifically argued that "the facts as produced in the grand jury do not support that a firearm was displayed in the furtherance of anything" and, as the dissent concedes, also argued that "just merely possessing a gun in and of itself is not in the furtherance of" the charged offenses.
Footnote 2
To the extent that the dissent's analysis relies upon the conclusion that "defendant's decision to show off her handgun to the ex-boyfriend . . . indicated to him her intent to retain possession of that object while they were together," that conclusion contains no factual support in the record. The court denied defendant's request for a hearing, and thus the ex-boyfriend did not offer any testimony whatsoever, let alone any testimony about what he interpreted defendant's display of the weapon to mean. His sworn statement, attached to the accusatory instrument, likewise contains no such assertion or allegation.
Footnote 3
As the majority notes, although defendant waived her right to appeal, she expressly noted during the plea colloquy her understanding that the court's prior removal determination was excluded from the scope of her waiver (see generallyPeople v Ruise, 242 AD3d 1587, 1587 [4th Dept 2025]; People v White, 61 AD3d 1396, 1397 [4th Dept 2009], lv denied 13 NY3d 750 [2009]). Neither the court nor the People objected to the exclusion of that issue from the waiver at the time of the plea, and the People do not now, on appeal, argue otherwise. Consequently, given the parties' agreement that this issue was excluded from the appeal waiver, I agree with the majority that the waiver does not foreclose our review of defendant's substantive contention challenging the removal decision (cf. People v Ogden, 244 AD3d 1774, 1775-1776 [4th Dept 2025] ["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"]; People v Blount, 239 AD3d 1426, 1427 [4th Dept 2025], lv denied 44 NY3d 981 [2025]).
Footnote 4
It is undisputed that this case does not involve a request by the People to prevent removal due to "extraordinary circumstances."
Footnote 5
Not to belabor the point, but I note that the phrase "such offense" is hardly ambiguous, and is additionally prefaced in the statute by its reference to a review of the "accusatory instrument" (CPL 722.23 [2] [a]) and to the requirement that "the [People] prove[ ] by a preponderance of the evidence one or more of the following as set forth in the accusatory instrument" (CPL 722.23 [2] [c] [emphasis added]). Thus, that plain language merely refers to the charges that are already contained in the accusatory instrument—even if the only offense charged is possession of a weapon—and does not compel the requirement that for CPL 722.23 (2) (c) (ii) to apply, there must be some offense beyond mere possession alleged therein.
Footnote 6
Indeed, it bears emphasizing that the majority rejects the broad all-or-nothing theory advanced by defendant when it states that it "could conceive of a possible situation where the display of a weapon furthered a defendant's continued possession of that weapon."
Footnote 7
Of course, we should interpret statutes as though the legislature was aware of the Court of Appeals' definition (see Dondorfer, 235 AD3d at 79; see also McKinney's Cons Laws of NY, Book 1, Statutes § 75 [a], Comment; see generally Feder v Caliguira, 8 NY2d 400, 404 [1960]). Viewed in that manner, it is my view that the legislature's use of the "in furtherance" language was not a deliberate attempt to effectuate the majority's view; rather, such use was intended to incorporate the definition of those words previously adopted by the Court of Appeals (see Henderson, 25 NY3d at 541).
Footnote 8
The majority asserts that there is no record support for my conclusion that defendant's act of showing her ex-boyfriend the gun establishes her intent to retain control and possession of that object, and intimates that the only way to establish that fact would be through testimony by the ex-boyfriend about what he perceived to be defendant's intent in showing him the gun. I disagree. It is well settled that "[a] defendant may be presumed to intend the natural and probable consequences of [their] actions . . . , and [i]ntent may be inferred from the totality of the conduct of the accused" (People v Stackhouse, 194 AD3d 113, 119 [4th Dept 2021] [internal quotation marks omitted]; see People v Wilcox, 194 AD3d 1352, 1358 [4th Dept 2021]). Here, in my view, it is reasonable to conclude that the natural and probable consequence of the act of showing the ex-boyfriend the gun was that defendant intended to retain possession and control thereof.