AT 9 & 10 order dated August 10, 2015, dismissing appeal. Pigott, J., granted leave November 30, 2015.

ISSUE PRESENTED: Whether the Appellate Term abused its discretion by dismissing the criminal appeal of an involuntarily deported defendant on the ground, in part, that he was unable to obey the mandate of the court. (Assigned counsel: Kent V. Moston, Nassau County Legal Aid Society, 40 Main Street, 3rd Floor, Hempstead, NY 1550.

 

Issue: Whether it is improper for an intermediate appellate court to dismiss a direct appeal on the grounds that appellant has been deported, where the appealed convictions were not the bases of the deportation, where appellant has failed to have any contact with appellate counsel, and where both dismissal and nondismissal issues were raised in the appellant’s brief.

 

Held:The Court unanimously ruled that an intermediate appellate court may not dismiss a direct appeal because the defendant has been involuntarily deported: it does not matter whether the criminal conviction was the basis of the defendant’s deportation, or whether the issues raised on appeal issues that would result in dismissal or retrial. 

 

CAL Observes: The Court’s decision extends its prior decisions in Ventura and People v Harrison (Serrano), 27 NY3d 281, 284 (2016), which had granted deported defendants significant rights to pursue their appeals in New York’s intermediate appellate courts. Most significantly, the decision rejects respondent’s argument that an intermediate appellate court has the authority to dismiss an appeal when the defendant has effectively abandoned his or her appeal. The Court’s decision recognizes that, even when a defendant has done no more than file an application for the assignment of counsel, an attorney can pursue an appeal on behalf of the client without further contact, and may even raise issues that would seem to require the defendant’s presence at further proceedings.