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The Right To Appeal – Even When The Defendant Has Been Deported


People v. Ventura 2011NY Slip Op 07475

Decided October 25, 2011

Issue: Whether it was an abuse of discretion for the appellate court to dismiss the appeals of defendants because the appellants had been deported and were not available to obey the mandate of the court.

Holding: The Appellate Division abused its discretion when it dismissed the appeal of defendants because the defendants did not flea the jurisdiction seeking to be evasive, but were removed from the country involuntarily and, therefore, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation.

The Court of Appeals holding was that it was an abuse of discretion because (1) involuntarily deported noncitizen defendants have a “great[] need” for their appeals to be heard because of the “tremendous ramifications of deportation”; (2) every criminal defendant possesses a statutory right to intermediate appellate review ; and (3) in other jurisdictions, involuntarily deported noncitizens “who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate.”

Facts: Both defendants filed timely notices of appeal, but were involuntarily deported by the Department of Homeland Security’s Immigration and Customs Enforcement Bureau (ICE) while their appeals were pending. The common issue presented is whether the Appellate Division abused its discretion in dismissing these appeals. We hold it did.

  Defendant Carlos Ventura was convicted of criminal possession of stolen property. Ventura filed a timely notice of appeal and submitted an appellate brief asserting that the evidence was legally insufficient to establish that he knowingly operated a stolen motor vehicle, and that his conviction was against the weight of the evidence.

     He was subsequently deported on September 12, 2008, prior to the resolution of his appeal which was scheduled for oral argument on January 8, 2009.  People moved to dismiss the appeal on grounds that Ventura was “unavailable to obey [the court’s] mandate.” The Appellate Division granted the motion to dismiss. A Judge of the Court of Appeals granted defendant leave to appeal.

     Defendant Gardner was convicted of criminal possession of a controlled substance in the seventh degree. He filed a timely notice of appeal  and was transferred to the custody of ICE. On February 26, 2009, prior to the determination of his appeal, Gardner was deported to Jamaica. The People’s motion to dismiss Gardner’s pending appeal, on the ground that he was no longer subject to the mandate of the court, was granted. A Judge of the Court of Appeals granted defendant leave to appeal.

     Pursuant to CPL 450.10, which codifies a criminal defendant’s common-law right to appeal to an intermediate appellate court, Ventura and Gardner had an absolute right to seek appellate review of their convictions [“every defendant has a fundamental right to appeal his conviction”]). By dismissing the appeals because of the ostensible inability of defendants to obey the mandate of the court, the Appellate Division abused its discretion.

Legal Analysis:  Generally, courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that “it [is] essential to any step, on behalf of a person charged with a felony after indictment found, that he should be in custody; either actual . . . or constructive” as “the whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person”. Accordingly, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals

     Here, this policy concern is not present. Ventura and Gardner were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation.

     The complete lack of intermediate appellate review materially distinguishes the instant appeals from prior cases. The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York’s hierarchy of appellate review, makes access to intermediate appellate courts imperative.

“Unlike this court (the NY Court of Appeals) which, with few exceptions, passes on only questions of law, intermediate appellate courts are empowered to review questions of law and questions of fact. This unique factual review power is the linchpin of our constitutional and statutory design intended to afford each litigant at least one appellate review of the facts”.  The intermediate appellate courts possess expansive power given their fact-finding function as well as their ability to reach unpreserved issues pursuant to their “interest of justice”. As such, these broad review abilities empower the Appellate Divisions to play a uniquely critical role in the fair administration of justice, especially when a defendant’s path of appeal is often foreclosed after a final determination by the intermediate appellate court.

     At any time after an appeal has been taken and before determination thereof, the appellate court in which such appeal is pending may, upon motion of the respondent or upon its own motion, dismiss such appeal upon the ground of mootness, lack of jurisdiction to determine it, failure of timely prosecution or perfection thereof, or other substantial defect, irregularity or failure of action by the appellant with respect to the prosecution or perfection of such appeal.”

    While we acknowledge the broad authority of the intermediate appellate courts to dismiss pending appeals (see Taveras, 10 NY3d at 233), this discretionary power cannot be accorded such an expansive view as to curtail defendants’ basic entitlement to appellate consideration. As a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appellate courts as “the State has provided an absolute right to seek review in criminal proceedings”

     Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court . Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants.

     The majority offers three rationales for its holding: (1) involuntarily deported noncitizen defendants have a “great[] need” for their appeals to be heard because of the “tremendous ramifications of deportation”; (2) every criminal defendant possesses a statutory right to intermediate appellate review ; and (3) in other jurisdictions, involuntarily deported noncitizens “who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate.”

       By definition, someone who is involuntarily deported would have preferred to continue to reside in this country, presumably because of the unwelcome “ramifications” of removal. But that is not a reason for a criminal appeal to go forward in those cases where the appeal’s outcome would have no bearing on the defendant’s immigration status — i.e., cases in which the conviction being appealed did not cause the defendant’s deportation  or prevent or complicate his potential return to the United States. Where the Appellate Division has information indicating that such a causal connection exists, I agree that it would be an abuse of discretion to dismiss the appeal on the sole basis of the defendant’s unavailability.

Here, defendant Damian Gardner was deported for overstaying his visa. The People informed the Appellate Division, however, that defendant’s wife, an American citizen, had “filed an I-485 requesting that defendant’s immigration status be adjusted, but that the petition was denied because of defendant’s criminal record“; and that “defendant’s conviction did affect his immigration status in that his wife’s petition may have been granted had he not been convicted of the crime in this case” (emphasis added). In light of these circumstances, I conclude that the Appellate Division abused its discretion when it dismissed Gardner’s appeal on the sole basis of his unavailability to obey the court’s mandate.

Opinion by Judge Jones. Chief Judge Lippman and Judges Ciparick and Smith concur. Judge Read dissents and votes to affirm in an opinion in which Judges Graffeo and Pigott concur.