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The People &C v. Carlos Ventura

October 25, 2011

THE PEOPLE &C., RESPONDENT,
v.
CARLOS VENTURA, APPELLANT. THE PEOPLE &C., RESPONDENT,
v.
DAMIAN GARDNER, APPELLANT.



The opinion of the court was delivered by: Jones, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In these criminal proceedings, the Appellate Division, pursuant to CPL 470.60 (1), dismissed defendants' direct appeals from their judgments of conviction prior to their hearing and disposition. Both defendants filed timely notices of appeal, but were involuntarily deported by the Department of Homeland No. 160 & 161 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.

Following a jury trial, defendant Carlos Ventura was convicted of criminal possession of stolen property in the third degree, unauthorized use of a motor vehicle in the third degree, and unlawful operation of a motor vehicle on a public highway. 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.

On July 23, 2008, Ventura, a citizen of the Dominican Republic and a legal permanent resident of the United States, was paroled to the custody of ICE. 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. After defense counsel apprised the prosecution and the Appellate Division of the deportation, the 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 this Court granted defendant leave to appeal.

Defendant Damian Gardner was convicted of criminal possession of a controlled substance in the seventh degree. He filed a timely notice of appeal and appellate brief, contending that the evidence was legally insufficient to prove guilt beyond a reasonable doubt. Gardner, a first-time offender, completed a 60-day term of incarceration 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 this Court granted defendant leave to appeal.

Defendants contend that the dismissal of their appeals was fundamentally unfair because their deportations were not purposeful absences that would disentitle them to appellate review. The prosecution responds that the Appellate Division did not err as it adhered to precedent and well settled principles compelling the dismissal of appeals pursued by physically absent defendants. We find the People's position unavailing as these appeals present circumstances materially distinguishable from our precedent. As such, we reverse in both cases.

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 (see People v Montgomery, 24 NY2d 130, 132 [1969] ["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. 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" (People v Genet, 59 NY 80, 81 [1874]). 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 (Degen v United States, 517 US 820, 824 [1996]; Ortega-Rodriguez v United States, 507 US 234, 242 [1993]; People v Sullivan, 28 NY2d 900 [1971]; People v Hernandez, 266 AD2d 116 [1st Dept 1999]; People v Johnson, 191 AD2d 279 [1st Dept 1993]).*fn1

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.

More significantly, the complete lack of intermediate appellate review materially distinguishes the instant appeals from prior cases. The People allude to this Court's precedent in Genet, People v Del Rio (14 NY2d 165 [1964]), People v Parmaklidis (38 NY2d 1005 [1976]), and People v Diaz (7 NY3d 831 [2006]), as plainly dispositive of the instant appeals. However, in those cases, the dismissed appeals were pending before this Court and the defendants had already received considered intermediate appellate review, in satisfaction of their statutory right. While it was within this Court's discretion, as a court of permissive appellate jurisdiction, to dismiss those appeals, the Appellate Divisions do not enjoy such unencumbered latitude.

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 (see NY Const Art. 6, § 5; see e.g., CPLR 5501 [c]), makes access to intermediate appellate courts imperative.

As we have previously recognized: "Unlike this court which, with few exceptions, passes on only questions of law, intermediate appellate courts are empowered to review questions of law and questions of fact. They do so in both civil cases and criminal cases. Indeed, 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" (People v Bleakley, 69 NY2d 490, 493-494 [1987] [internal citations omitted]).

While the avenues of appeal to this Court are limited and its purview strictly prescribed, 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" authority (see CPL 470.15 [6]). 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 (see Karger, Powers of the New York Court of Appeals, § 1:1 [rev 3d ed 2005]).

The People direct us to an apparent point of tension stemming from the discretionary authority of the Appellate Divisions to dismiss appeals prior to their disposition. CPL 470.60 (1) provides that:

"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 ...


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