The People, Respondent,v.Andre Harrison, Appellant.BriefN.Y.March 29, 2016To be argued by DEBORAH E. WASSEL (TIME REQUESTED: 15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against ANDRE HARRISON, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-5860 ROBERT J. MASTERS JOHN M. CASTELLANO DEBORAH E. WASSEL Assistant District Attorneys Of Counsel JULY 1, 2015 Queens County Indictment Number 1160/08 APL-2015-00014 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 FACTUAL AND LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Crime, Plea, and Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Defendant’s Immigration Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Defendant’s Motion to Vacate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Defendant’s Collateral Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ARGUMENT THE APPELLATE DIVISION DID NOT ABUSE ITS DISCRETION IN DISMISSING DEFENDANT’S PERMISSIVE APPEAL ON COLLATERAL REVIEW WHERE DEFENDANT HAD OBTAINED MERITS REVIEW OF HIS CLAIM BELOW, THE STATUTE DID NOT AFFORD HIM AN APPEAL AS OF RIGHT, HE WAS NO LONGER AVAILABLE TO OBEY THE MANDATE OF THE COURT, AND, IF HE WERE SUCCESSFUL, HIS FURTHER PRESENCE WOULD BE REQUIRED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. The Court Had Statutory Discretion to Order the Dismissal of Defendant’s Discretionary Collateral Appeal Due to His Deportation, Just as this Court Did in People v. Diaz, 7 N.Y.3d 831 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 B. Contrary To Defendant’s Contention, He Is Not “Entitled To At Least One Opportunity For Appellate Review” Of His Claim Under The Statutes Governing Collateral Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 C. The Extraordinary Ban on the Use of Discretion Carved out in People v. Ventura, 17 N.Y.3d 675 (2011), Should Not Be Extended to Circumstances Where the Factors Compelling the Rule No Longer Apply. . . . . . . . . . . . . . . . . . . . . . . 40 D. Defendant Was Not Treated Unfairly by the Dismissal Because He Had Obtained Full Merits Review of His Claim, He Did Not Allege His Innocence or Any Viable Defense to the Charge, and His Claim Was Ultimately Unconvincing at Best, Particularly in Light of the Admonitions Given to Defendant at the Time of the Plea. . . . . . . . . 45 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 iii TABLE OF AUTHORITIES Page No. Cases Calaff v. New York, 135 S. Ct. 273 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Coleman v. Thompson, 501 U.S. 722 (1991). . . . . . . . . . . . . . . . . . . . . . . . . 38n.12 Comm. v. Dias, 2015 WL 711589 (Mass. App. Ct. 2015). . . . . . . . . . . . . . . 34n.11 Dockery v. New York, 135 S. Ct. 229 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Edwards v. Logan, 38 F. Supp. 2d 463 (W.D. Va. 1999). . . . . . . . . . . . . . . . . 27n.6 In re Von Bulow, 63 N.Y.2d 221 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 In re Robert E., 68 N.Y.2d 920 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Matter of Hancock, 55 A.D.3d 216 (2d Dept. 2008). . . . . . . . . . . . . . . . . . . . 14n.2 Murden v. Artuz, 497 F.3d 178 (2d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . 38n.12 Pennsylvania v. Finley, 481 US 551 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . 38n.12 People v. Alvino, 71 N.Y.2d 233 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Andrews, 23 N.Y.3d 605 (2014), rearg. denied, 24 N.Y.3d 937 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36 People v. Badia, 106 A.D.3d 514 (1st Dept. 2013) . . . . . . . . . . . . . . . . . . . . . 11, 33 People v. Bautista, 7 N.Y.3d 838 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Belge, 41 N.Y.2d 60 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Campbell, 90 N.Y.2d 852 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Carty, 96 A.D.3d 1093 (3d Dept. 2012). . . . . . . . . . . . . . . . . . . 11, 33, 34 People v. Del Rio, 14 N.Y.2d 165 (1964), cert. denied, 379 U.S. 939 (1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 iv People v. Diaz, 7 N.Y.3d 831 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Drayton, 39 N.Y.2d 580 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Eldridge, 31 N.Y.2d 820 (1972), cert. denied, 412 U.S. 909 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Farrell, 85 N.Y.2d 60 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 36, 37 People v. Fratta, 83 N.Y.2d 771 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Gasperd, 33 Misc. 3d 1228(A), 939 N.Y.S.2d 742 (Sup. Ct. Kings County 2011). . . . . . . . . . . . . . . . . 28n.7 People v. Genet, 59 N.Y. 80, 81 (1874). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25 People v. Gomcin, 95 N.Y.2d 821 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Guzman, 962 N.E.2d 1182 (Il. App. 3d 2011). . . . . . . . . . . . . . . . 34n.11 People v. Harrison, 115 A.D.3d 980 (2d Dept. 2014). . . . . . . . . . . . . . . . . . . . . . 19 People v. Headley, 72 N.Y.2d 931 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Jie Mei Chen, 26 A.D.3d 344 (2d Dept. 2006). . . . . . . . . . . . . . . . 38n.12 People v. Jiminez, 71 N.Y.2d 963 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Johnson, 99 N.Y.2d 570 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Mark, 8 N.Y.3d 907 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 23, 26 People v. Mendoza, 82 N.Y.2d 415 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Mohammed, Docket No. 2008KN046059 (Sup. Ct. Kings County 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28n.7 People v. Mongen, 76 N.Y.2d 1015 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Pamaklidis, 38 N.Y.2d 1005 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Paredes, Ind. 1104/04 (Sup. Ct., N.Y. County 2010).. . . . . . . . . . . 28n.7 v People v. Perez, 23 N.Y.3d 89 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Perry, 36 N.Y.2d 114(1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Ricardo B., 73 N.Y.2d 228 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Roberts, 36 Misc.3d 1239(A), 964 N.Y.S.2d 62 (Sup. Ct. N.Y. County 2012). . . . . . . . . . . . . . . . . . . 28n.7 People v. Romero, 7 N.Y.3d 633 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Spencer, 32 N.Y.2d 446 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Stevens, 91 N.Y.2d 270 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Sullivan, 28 N.Y.2d 900 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Taveras, 10 N.Y.3d 227, 233 (2008). . . . . . . . . . . . . . . . . . . . . 23, 24, 32 People v. Tineo, 64 N.Y.2d 531 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 People v. Ventura, 17 N.Y.3d 675 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Watson, 99 N.Y.2d 570 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. West, 100 N.Y.2d 23 (2003), cert. denied 540 U.S. 1019 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Wrotten, 14 N.Y.3d 33 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Popoca-Garcia v. State, 334 P.3d 824 (Idaho Ct App. 2014). . . . . . . . . . . . 34n.11 State v. Cabanillas, 2012 WL 2783182 (Ariz. Ct. App. 2012). . . . . . . . . . . 34n.11 State v. Garricks, 2013 WL 1830813 (N.J. Super. Ct. App. Div. 2013). . . . 34n.11 Stoner v. Sowders, 997 F.2d 209 (6th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . 27n.6 Thornton v. Snyder, 428 F.3d 690 (7th Cir. Ill. 2005). . . . . . . . . . . . . . . . . . . 31n.9 United States v. Baker, 45 F.3d 837 (4th Cir. 1995).. . . . . . . . . . . . . . . . . . . . 31n.9 United States v. Doe, 365 F.3d 150 (2d Cir. 2004).. . . . . . . . . . . . . . . . . . . . 38n.12 vi United States v. Flores, 2013 WL 5670924 (S.D. Cal. 2013). . . . . . . . . . . . 34n.11 United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001). . . . . . . . . . . . . . . . 27n.6 Statutes 8 U.S.C. § 1182. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 30 C.P.L. § 440.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim C.P.L. § 440.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12, 17, 46, 47 C.P.L. § 450.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 41 C.P.L. § 450.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 36 C.P.L. § 460.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 C.P.L. § 470.60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21, 23, 24, 25, 26, 48 Penal Law § 205.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Penal Law § 265.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Penal Law § 265.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14 vii COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : ANDRE HARRISON, : Defendant-Appellant. : ---------------------------------------------------------------------x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By order of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, defendant Andre Harrison appeals from a March 26, 2014, Order of the Appellate Division, Second Department, which dismissed his appeal from the denial of a motion, pursuant to section 440.10 of the Criminal Procedure Law, to vacate a judgment rendered in Supreme Court, Queens County, convicting him, after a plea of guilty, of Attempted Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03). Defendant was sentenced to determinate prison term of two years, followed by a two-year term of post-release supervision (Raciti, J., at plea and sentence). After serving his sentence, defendant was transferred to the custody of United States Department of Immigration and Customs Enforcement and, on November 30, 2012, was removed from the United States. INTRODUCTION On April 12, 2008, police found defendant in possession of a loaded, defaced, and operable .22 caliber handgun with ammunition. Defendant, facing a lengthy potential sentence of up to fifteen years’ incarceration and five years post- release supervision on a charge of Criminal Possession of a Weapon in the Second Degree, pled guilty four weeks later, on May 8, 2008, to the reduced charge of attempted second-degree weapon possession, receiving a sentence of two years’ incarceration and two years’ post-release supervision. At the time of the plea, counsel told the court that defendant was a non- citizen and defendant verbally acknowledged in response to the court’s inquiry that he understood that if the plea had a negative effect on his immigration status, he would not be allowed to withdraw the plea. Defendant also signed a written waiver, affirming in the document that he had discussed the waiver with his attorney, acknowledging that his plea could result in deportation, and further acknowledging that his plea would stand as valid notwithstanding any such consequence. Deportation proceedings were commenced three months later. More than two years after the plea, and almost two years after the deportation proceedings commenced, defendant made a motion pursuant to C.P.L. § 440.10, alleging for the first time that his attorney had told him “not to worry about his immigration status” and that he would not have pled guilty had he been correctly advised. Defendant never presented any support for his assertions other than his own self-serving statements, and did not contend that he did not understand the court’s 2 warnings about deportation or the admonition that he would not be able to get his plea back. The 440 court denied the motion on the merits. It noted the absence of any support for defendant’s self-serving statements and that defendant did not raise any possibility that he had a viable trial defense that would have led him to reject the plea. Citing section 440.30(4)(d) of the Criminal Procedure Law, the court specifically found that defendant’s allegations that he would not have pled guilty and would have insisted on going to trial were self-serving and unsupported by evidentiary facts. The court further found that there was no reasonable possibility that defendant’s allegations were true. Defendant, lacking an appeal as of right by statute, sought permission to appeal. Leave to appeal to the Appellate Division was granted, but defendant did not file a brief in that court for another eight months. In his brief, defendant argued that the trial court had erroneously denied his claim without a hearing and requested a remand to the lower court for that purpose. After full briefing and before decision, defendant was deported. The Appellate Division dismissed the collateral appeal, likening the case to People v. Diaz, 7 N.Y.3d 831 (2006), in which this Court exercised its discretion to dismiss a discretionary appeal by an involuntarily deported defendant. The court distinguished People v. Ventura, 17 N.Y.3d 675 (2011), in which this Court held that the Appellate Division abused its discretion by dismissing direct appeals as of right of involuntarily deported defendants and relied heavily on the absolute right of criminal defendants to appeal their convictions to an 3 intermediate appellate court. The Appellate Division noted that here, in contrast to Ventura, the appeal was collateral and, like Diaz, discretionary. The court also noted that Ventura rested, in part, on the proposition that the defendants in that case sought only dismissal of the indictment so that their future unavailability to obey the mandate of the court was irrelevant, while the defendant here sought a hearing on his claim, for which he would not be present. Defendant now argues that the Appellate Division abused its discretion in dismissing his appeal, advancing a rule that would bar any intermediate appellate court from ever dismissing any appeal of an involuntarily deported defendant. For the reasons stated below, the Appellate Division properly held that it had the discretion to dismiss defendant’s appeal on discretionary, second-round collateral review, like this Court has dismissed appeals of involuntarily deported defendants on discretionary review, and distinguished Ventura, which only barred dismissals on mandatory first-round direct appeals of involuntarily deported defendants to which they were entitled to as of right. SUMMARY OF ARGUMENT The Appellate Division did not abuse its discretion in dismissing defendant’s discretionary appeal on collateral review from the denial of a 440.10 motion that had been fully considered on the merits. As the Appellate Division correctly noted, defendant, after being deported, was no longer available to obey the mandate of the court during proceedings that would have been required were he successful; the collateral appeal was discretionary to begin with; the statute governing 4 dismissals of appeals in that court, as well as this Court, afforded discretion to dismiss; and this Court has previously exercised its discretion under the same statute to dismiss appeals where defendants were involuntarily deported, see People v. Diaz, 7 N.Y.3d 831 (2006). Moreover, at the time of the dismissal in this case, defendant had already received full review of the merits of his motion, which did not allege his innocence, did not allege any viable theory of defense, and made only unsupported, self-serving allegations that counsel told defendant not to worry about deportation and that defendant would not have pled guilty if he had received correct advice, even though the plea court had warned defendant of the immigration consequences of his plea, defendant had also signed a document warning him of these immigration consequences, and defendant was specifically told, both orally and in writing, that he would be unable to withdraw his plea if there were immigration consequences. Defendant does not now contest that review in the Appellate Division was discretionary, that the statute governing dismissals of appeals in that court vests the Appellate Division with discretion, or that this Court has exercised its discretion under the very same statute to dismiss pending discretionary appeals solely on the basis of a defendant’s involuntary deportation. Nevertheless, he argues that this Court should hold that an Appellate Division abuses its discretion as a matter of law whenever it dismisses a discretionary collateral appeal of an involuntarily deported defendant. Defendant asserts that this is so because “a defendant is entitled to at least one opportunity for appellate review of his ineffective assistance of counsel claim” (Defendant’s Brief at 16; capitalization omitted), and, under these circumstances, this 5 Court’s decision in People v. Ventura, 17 N.Y.3d 675 (2011), bars dismissal as a matter of law. Defendant is wrong, both because he fundamentally misunderstands the nature of collateral appeals, which afford no such right, and because the rule carved out in Ventura – compelled where defendants were deprived of their first appeals as of right and where no further proceedings would have been required had they won – in no way bars dismissal on a discretionary collateral appeal that would require further proceedings. Initially, defendant’s claim that defendants like him pursuing collateral review are “entitled to” at least one opportunity for appellate review is belied by the statute affording collateral appeals in the first instance. As noted above, the statute providing for appellate review on a collateral appeal is wholly discretionary, C.P.L. § 450.15(1); People v. Farrell, 85 N.Y.2d 60 (1995), and a defendant therefore is not “entitled to” appellate review of his claim. This is consistent with the statutory scheme for post-conviction motions, in which defendants’ attacks on their convictions are brought and first reviewed in the trial court, and the appeal to the Appellate Division is a discretionary second round of review for a claim that has already been heard by a court that has full power to consider both the law and the facts. This is in contrast to direct appeal, where the primary attack on the judgment occurs in an appeal as of right to the Appellate Division, and the appeal to this Court is the discretionary second round of review. Thus, contrary to defendant’s assertion, the statute governing collateral appeals to the Appellate Division simply does not confer 6 any entitlement to appellate review to defendants asserting post-conviction claims in a 440.10 motion. Still further, contrary to defendant’s contention, People v. Ventura, 17 N.Y.3d 675 (2011), is readily distinguishable. This Court in Ventura held that the Appellate Division could not dismiss on deportation grounds an appeal as of right on direct review where the defendants sought only dismissal of the indictment and no further proceedings were necessary on the matter if the defendants were to succeed. Here, by contrast, the Appellate Division dismissed a purely discretionary appeal, on collateral review, after defendant had obtained merits review of his claim below, and in a situation in which, should the Appellate Division have agreed with defendant on appeal, further proceedings on the motion would be necessary. These distinctions are significant and, indeed, dispositive here. First, one of the primary justifications for the automatic-abuse-of-discretion rule in Ventura was the mandatory character of direct review of defendants’ convictions in intermediate appellate courts. Indeed, while this Court acknowledged in Ventura the broad discretion of the Appellate Divisions to dismiss appeals, it held that that authority had to be curtailed due to the defendants’ “basic entitlement to appellate consideration” and because “the State has provided an absolute right to seek review in criminal prosecutions” (citations and internal quotation marks omitted). Ventura, 17 N.Y.3d at 682. The court also specifically distinguished Diaz because in that case the Court of Appeals possessed only “permissive appellate jurisdiction.” Id. at 680. 7 Here, defendant had no “basic entitlement” or “absolute right” to an appeal on collateral review, and could at most invoke only “permissive appellate jurisdiction.” Second, the defendants in Ventura, unlike the defendants here, were deprived of their opportunity for their critical first round of review. Indeed, their appeals to the Appellate Division provided the primary opportunity to attack the judgment of conviction based on claims appearing on the record, which had to be brought on direct appeal. Here, by contrast, defendant had obtained full merits review of his claim in the trial court, pursuant to the scheme set forth in the criminal procedure law providing that that court is the primary forum for presenting such claims, and he was deprived only of a second-round of review. His claim, thus, did not go unheard, it simply went unheard in the discretionary forum in which he wished to present it. Third, the Ventura Court also expressly relied on the fact that the defendants in that case requested only that their indictments be dismissed, and thus the fact that they were no longer available to obey the mandate of the court was irrelevant. Here, by contrast, the remedy to be afforded required additional proceedings, specifically, the hearing that he had requested on his motion. Defendant’s future availability was, thus, a legitimate concern for the Appellate Division. Nor were defendant’s alternative proposals to make him “available” for such a hearing sufficient to eliminate the Appellate Division’s concerns. Defendant’s testimony, which he himself acknowledges would be “likely” at such a hearing, see 8 Defendant’s Brief at 24, would require placing him under oath in a foreign jurisdiction and the People would have no ability to prosecute defendant extraterritorially should he commit perjury. Absent the realistic prospect of prosecution for perjury, defendant would be free to lie under oath without consequence. This too was a legitimate concern for the Appellate Division, one that would indeed require defendant’s actual presence. Similarly inadequate is the speculative option that the federal government would, despite his conviction, afford defendant a non-immigrant visa. Contrary to defendant’s contention, defendant is now “inadmissible,” i.e., he cannot be readmitted to this country for a period of ten years due to his prior removal. 8 U.S.C. § 1182(a)(9)(A)(ii). Moreover, defendant cites no precedent for the proposition that the Attorney General would be likely to grant a special exception to defendant under her general authority to allow readmission in her sole discretion. Also speculative is the federal government’s response to a request by the prosecution under the Attorney General’s general authority to grant temporary “parole” on a “case by case” basis. Here again, defendant cites no precedent whatsoever for the proposition that such a request would be granted to a convicted defendant, much less any realistic likelihood that this defendant, convicted of a felony firearms offense, would be readmitted under this provision. Under these circumstances, the Appellate Division understandably found these options less than reassuring. Fourth, the above factors – that the collateral appeal was discretionary, that defendant received the first-round of review to which he was entitled, and that 9 defendant’s continued presence was required – not only distinguished this case from Ventura, they liken this case to Diaz. In Diaz, this Court had granted a discretionary appeal, defendant’s claim had been considered on the merits in the Appellate Division, and defendant’s presence would have been required at any further hearings or a trial, but this Court dismissed the appeal due to defendant’s involuntary1 deportation. Defendant’s case here possesses all of these same characteristics. Indeed, as noted above, Ventura distinguished Diaz on the grounds that the Court in Diaz possessed “permissive appellate jurisdiction” to which defendant was not “entitled” and that defendant had received full review of his claims in the intermediate appellate court. The Appellate Division thus correctly held that this case was similar to Diaz rather than Ventura, and relied on Diaz for its guidance. Defendant nevertheless attempts to distinguish Diaz, arguing that Ventura reserved dismissals based on a defendant’s deportation solely to this Court and categorically banned the Appellate Divisions from ever granting dismissals on this ground in any context. See Defendant’s Brief p. 21. But such a rule would be an unwarranted expansion of Ventura, based on the considerations specifically identified by this Court in that case. It was, indeed, the fact that defendants had a “basic entitlement” and “absolute right” to the first round of review in the Appellate Indeed, the issues on appeal, if resolved in defendant’s favor, could have resulted1 in further proceedings at which defendant’s presence would have been necessary. Specifically, the defendant in Diaz alleged that the People failed to prove his guilt with legally sufficient evidence, and that the trial court erred in both admitting an out-of-court identification as an excited utterance and failing to give a missing witness charge. Had defendant prevailed on the identification or jury charge issues, he might have been granted a new trial at which his presence would certainly have been required. 10 Division that made it essential that their appeals be heard – neither of which apply on collateral review. Similarly, while this Court noted that the Appellate Division, unlike this Court, has power to review both the law and the facts, and that the Ventura defendants were deprived of that plenary consideration of their claims, here defendant’s claim was considered by a court with full power to review both the law and facts. Defendant’s out-of-state cases provide little support for his contention. See Defendant’s Brief at 22. Most of the handful of decisions he cites involve simply the exercise of discretion to review claims of deported defendants, and none support what defendant requests here: a ban on discretionary dismissals. Indeed, in none of the out-of-state cases defendant cites as supporting his claim was a proper motion to dismiss the proceeding even made. Thus, the issue of dismissal was not before those courts, and thus, those decisions do not discuss the propriety of discretionary dismissals at all. Similarly, defendant’s citation to two lower court New York cases is unavailing: one involves a motion to dismiss a 440 motion in the trial court and the other is simply an exercise of discretion to retain the appeal, not a blanket bar on such dismissals. People v. Badia, 106 A.D.3d 514 (1st Dept. 2013) (dismissal by trial court improper); People v. Carty, 96 A.D.3d 1093 (3d Dept. 2012) (“We decline to dismiss the appeal” of involuntarily deported defendant). In addition, contrary to defendant’s contention, it was not “fundamentally unfair” to limit defendant to his statutory, as-of-right, remedies after plenary consideration of his claim in the trial court. Unlike the defendants in 11 Ventura, defendant did obtain review of his claim on the merits in the statutorily mandated forum for such review, although not with the result that he had hoped for. The fact that he did not obtain still further review of his claim on the discretionary appeal put him in no worse position than the vast majority of defendants who have not been deported. Moreover, defendant’s claim was not so exceptional that further review was mandated. Defendant did not, in his motion, maintain his factual innocence of the crime, and indeed did not even proffer any defense to the charges. He also never denied hearing or understanding the court’s warning about immigration consequences and never denied that he understood, at the time of the plea, that he would not be permitted to take his plea back in the event that there were in fact immigration consequences to his plea. And his belated claim made for the first time two years after removal proceedings were commenced that counsel had contradicted the court was made solely by defendant and was not, under the circumstances, likely to be true. See C.P.L. § 440.30(4)(d) (permitting dismissal where essential allegation of fact made solely by defendant and under circumstances is unlikely to be true). Nor was his assertion that he would not have pled guilty had he known he would be deported plausible, given that he twice, both orally and in writing, acknowledged to the court that he understood he would not be allowed to withdraw his plea in the event of adverse immigration consequences. Accordingly, defendant’s claim was far from compelling and, indeed, unlikely to prevail. 12 Finally, defendant’s proposed ban on the use of discretion is flawed for other reasons. Indeed, it would undermine the very purpose of the permissive appeal statute, which is to conserve judicial resources, by compelling intermediate appellate courts to decide issues in cases in which defendant is not available to participate in further proceedings. It would also likely chill the granting of discretionary appeals of defendants in deportation proceedings, for fear that the court would be required to decide unnecessary appeals despite their overloaded dockets. Thus, Ventura’s unusual ban on the exercise of statutory discretion – compelled where a defendant will lose his critical first appeal as of right and where no further proceedings will be necessary should he succeed – should not be extended to circumstances where defendant has already had review of his claims attacking the conviction, his appeal is wholly discretionary second-round review, and his presence would be necessary if he succeeds. Because the Appellate Division appropriately exercised its discretion in this case, its dismissal of the appeal should be affirmed. FACTUAL AND LEGAL BACKGROUND The Crime, Plea, and Sentencing On April 12, 2008, as Officer Ryan Henry tried to give defendant a ticket for riding his bicycle on the sidewalk, defendant sped away, fell off of his bicycle, and ran. As defendant ran, he threw an operable, loaded, and defaced .22 caliber firearm to the ground. Officer Henry apprehended him and recovered rifle ammunition in defendant’s pocket. Defendant resisted arrest, after which he stated 13 that he had found the box of ammunition but made no such claim as to the weapon itself. For the above actions, defendant was charged with two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03[1][B], 265.03[3]), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[3]), and Resisting Arrest (Penal Law § 205. 30). Defendant was also charged with violating sections 10-313-I-3 (Firearms/Ammunition) and 19-176(C) (Bicycle Operation on Sidewalks Prohibited) of the Administrative Code (Queens County Docket Number 2003QN007663). On May 8, 2008, defendant waived indictment and pleaded guilty to Attempted Criminal Possession of a Weapon in the Second Degree (Superior Court Information Number 1160/2008) (Raciti, J.). Defendant was represented by Frank Hancock, Esq. The court asked if defendant knowingly possessed a firearm, and2 defendant answered that he had (A: 9). The court then explained the waiver of3 appeal, stating that he was “giving up [his] right to tell a higher court that there was an error or mistake in any of these proceedings, including the plea.” The court asked if defendant had signed the waiver, and defendant stated that he had (A: 10). The waiver specifically stated that if defendant was not a United States citizen, the plea “may result in deportation, exclusion from the United States, or denial of Mr. Hancock was subsequently disbarred from the practice of law in 2008. See Matter of2 Hancock, 55 A.D.3d 216 (2d Dept. 2008). Notably, Mr. Hancock was disbarred for helping a disbarred colleague practice law without a license; that matter was unrelated to the issue in defendant’s case here. Page citations preceded by “A” refer to defendant-appellant’s appendix. 3 14 naturalization,” and that defendant “wish[ed] to enter into the plea agreement notwithstanding any immigration or deportation consequences.” Further, the waiver stated that, by signing the waiver, a defendant also waived his right to appeal and other rights. This waiver included, inter alia, the right to file post-conviction motions pursuant to section 440.10 of the Criminal Procedure Law, to contest any suppression issues, and to make any other applications (A: 12). Next, the court asked if defendant was a citizen, to which defendant’s attorney replied that he was not. The court then advised defendant that if the “plea has a negative effect upon your immigration status, you would not be allowed to withdraw your plea; do you understand?” to which defendant replied, “Yes, sir” (A: 10). On June 4, 2008, defendant was sentenced, as promised, to a determinate jail term of two years along with two years of post-release supervision (Raciti, J.). Defendant’s Immigration Proceedings On August 21, 2008, approximately three months after the plea, the United States Department of Homeland Security, United States Immigration and Customs Enforcement (“ICE”), placed defendant, a citizen of Jamaica and a permanent legal resident of the United States, into removal proceedings and charged him with removability under section 237(a)(2)(C) of the Immigration and Naturalization Act, because his June 4, 2008, judgment of conviction was a firearms violation. On February 18, 2009, defendant was ordered removed, as he did not 15 qualify for any relief. On June 18, 2009, the Board of Immigration Appeals affirmed the February 18, 2009, deportation order without opinion. On December 24, 2009, defendant was released from the custody of the New York State Department of Corrections and was transferred to an ICE facility in Buffalo, New York. On January 22, 2010, defendant filed a motion to reopen his case. On February 26, 2010, the Board of Immigration Appeals denied defendant’s motion and reaffirmed the removal order. On November 7, 2011, defendant was moved to an ICE detention facility in Louisiana, and the next day, November 8, 2011, defendant was transferred to an ICE detention facility in Alabama. Defendant was deported to Jamaica on November 30, 2012. 4 Defendant’s Motion to Vacate Two years after removal proceedings began, and five months after the Board of Immigration Appeals affirmed defendant’s removal order, on July 19, 2010, defendant moved, pursuant to section 440.10 of the Criminal Procedure Law, to vacate his judgment of conviction on the ground that counsel was ineffective, alleging for the first time that counsel misadvised him regarding the immigration consequences of his plea and on two other on-the-record grounds (A: 19-30). On5 March 11, 2011, the People submitted their affirmation in opposition in which they argued that defendant’s motion should be summarily denied because defendant failed This information stems from various conversations with Officers in the Department4 of Homeland Security’s Immigration and Customs Enforcement. These grounds are not discussed here, as defendant did not challenge the court’s5 summary denial of these claims on appeal. 16 to show that he received the ineffective assistance of counsel; specifically, defendant received a highly favorable plea bargain, and thus, the People argued, could not claim that his decision to accept the plea was not rational or that he was prejudiced by counsel’s alleged failure to advise him. The People also argued that defendant’s claims were based solely on his uncorroborated allegations, were contradicted by the record of his plea, and were unlikely to be true, and that the court should deny his claim pursuant to section 440.30(4)(d) of the Criminal Procedure Law (A: 31-47). In a written decision dated March 16, 2011, the court summarily denied defendant’s motion. First, the court denied the ineffective-assistance claim, finding that defendant had received an advantageous plea and had failed to show that he was prejudiced by counsel’s alleged misadvice, as he offered only a conclusory statement, unsupported by any corroborating evidence, that he would not have pleaded guilty but for the misadvice and failed to make a claim of innocence or articulate a plausible defense to the charges. Therefore, the court concluded that defendant had failed to show prejudice, even if counsel had given him the wrong advice about the immigration consequences of his plea. The court further found that, section 440.30(4)(d) justified denial without a hearing because, as outlined in that section, defendant’s claims were made solely by him, were unsupported by any evidence, and there was no reasonable possibility that his allegations were true. The court also summarily denied the remainder of defendant’s claims because they were subject to the mandatory procedural bar of section 440.10(2), as they were based on matters that appeared on the record (A: 62). 17 The Collateral Appeal Defendant filed an application for leave to appeal to the Appellate Division, Second Department. By an Order dated July 8, 2011, the Appellate Division granted his motion. Approximately eight months later, in March 2012, appellate counsel filed a brief on defendant’s behalf in the Appellate Division seeking reversal of the lower court’s denial of his motion to vacate the judgment of conviction. The District Attorney’s Office filed the Respondent’s Brief on September 19, 2012. On October 18, 2013, in preparation for oral argument on this case, scheduled for Monday, October 21, 2013, defendant’s attorney informed the District Attorney’s Office that defendant had been deported eleven months earlier, on November 30, 2012, after respondent’s brief was filed. By Notice of Motion dated October 21, 2013, the People moved, pursuant to section 470.60 of the Criminal Procedure Law, to dismiss defendant’s appeal on the ground that, due to his deportation, he was no longer subject to the jurisdiction of the court. In that motion, the People argued that dismissal was appropriate because defendant was not available to obey any mandate of the court that would result from his appeal (A: 162). The People distinguished Ventura, arguing that defendant’s pending appeal was not a first appeal as of right, and thus did not implicate the dismissal ban in Ventura (A: 170). The People also argued that, unlike in Ventura, defendant here was no longer available to obey the mandate of the court in the event he succeeded on his appeal, and, while the appeals of the Ventura 18 defendants would result in outright dismissal if those defendants prevailed, here, defendant’s successful challenge to the court’s summary denial of his section 440 motion would result only in remand to the motion court for a hearing and decision based on the hearing for which defendant would need to be present (A: 171). Defendant’s appellate counsel opposed the motion and asked the court to entertain defendant’s appeal despite his unavailability. Counsel argued that it might be possible for defendant to obtain a non-immigrant visa to return to the United States for prosecution (A: 179). Counsel also did not allege that defendant had applied for any visa. Counsel also argued that this Court’s decision in Ventura prevented any appellate court from dismissing a defendant’s appeal after deportation (A: 177-178). The Appellate Division, by Order dated March 26, 2014, granted the motion and dismissed defendant’s appeal. People v. Harrison, 115 A.D.3d 980, 981 (2d Dept. 2014). After discussing both Diaz and Ventura, the court found this case more analogous to the former rather than the latter (A: 3-4). The court noted that the defendants in Ventura “were appealing pursuant to their statutory right to appeal their judgments of conviction to an intermediate appellate court” and that this Court had distinguished Diaz because the defendant in that case “was appealing to the Court of Appeals pursuant to its permissive appellate jurisdiction” (A: 3). Id. at 981-82. The Appellate Division then observed that in this case “the defendant is not directly appealing from his judgment of conviction as of right pursuant to CPL 450.10 (1) but, 19 rather, is appealing, by permission, from an order denying his motion to vacate his conviction” (A: 4). In addition, the Appellate Division noted that “in Ventura [this Court] also noted that because the two defendants in that case were only raising legal sufficiency and weight-of-the-evidence arguments on their appeals, disposition of the appeals would result in either an affirmance or outright dismissal of the convictions, and neither outcome would require the continued legal participation of the defendants. . . . Thus, the Court of Appeals stated that the perceived inability to obey the mandate of the court was not implicated in that case.” Id. at 982. The Appellate Division then contrasted this case: “if the order were to be reversed [here], the defendant’s motion to vacate his conviction granted, and his plea of guilty vacated, the defendant’s continued participation in the proceedings would be required” (A: 3- 4). The court explicitly made the dismissal without prejudice. The Court also relied on this Court’s decision in People v. Mark, 8 N.Y.3d 907 (2007), another case in which this Court dismissed the appeal of an involuntarily deported defendant. 20 ARGUMENT THE APPELLATE DIVISION DID NOT ABUSE ITS DISCRETION IN DISMISSING DEFENDANT’S PERMISSIVE APPEAL ON COLLATERAL REVIEW WHERE DEFENDANT HAD OBTAINED MERITS REVIEW OF HIS CLAIM BELOW, THE STATUTE DID NOT AFFORD HIM AN APPEAL AS OF RIGHT, HE WAS NO LONGER AVAILABLE TO OBEY THE MANDATES OF THE COURT, AND, IF HE WERE SUCCESSFUL, HIS FURTHER PRESENCE WOULD BE REQUIRED. The Appellate Division acted well within its authority in dismissing defendant’s appeal because he had been deported and was not available to obey any mandate that might result from his appeal. The Appellate Division’s action was authorized by section 470.60 of the Criminal Procedure Law and in accord with the this Court’s decisions in People v. Diaz, 7 N.Y.3d 831 (2006), and People v. Mark, 8 N.Y.3d 907 (2007), in which this Court dismissed the discretionary appeals of involuntarily deported defendants. The Appellate Division’s exercise of discretion is further supported by the fact that defendant had previously obtained full merits review of his claim in the lower court, which had the power to consider both the facts and the law. Thus, the Appellate Division’s dismissal was both fully authorized and warranted as a matter of discretion. Nevertheless, defendant asserts that the Appellate Division was barred from using its discretion to dismiss his appeal because he was “entitled” to review by that court (Defendant’s Brief at 16-23). This reflects a fundamental misunderstanding of the statutory distinctions between direct and collateral appeals. Whereas on direct appeal, the first round of review occurs in the Appellate Division and is as-of-right, 21 for collateral motions, the first round of review occurs in the trial court and the appeal to the Appellate Division is wholly discretionary. Defendant, then, was not “entitled” to review in the Appellate Division in any normal usage of that word, and certainly not in any sense different from the defendant in Diaz, who had also been granted discretionary review. Furthermore, contrary to defendant’s contention, this Court’s decision in People v. Ventura, 17 N.Y.3d 675 (2011), does not warrant a reversal. Indeed, there are a number of compelling factors in this case that distinguish it from Ventura. Specifically, Ventura involved direct appeals in which the defendants were deprived of their absolute right to first round review of their claims. Here, defendant received his first round review, and only his wholly discretionary appeal was dismissed. Further, as the Appellate Division pointed out, this Court found significant in Ventura that both defendants had sought only dismissal of their indictments and thus no further proceedings would be necessary should they succeed. Here, defendant sought a remand and a hearing, at which his presence would be required, but he was outside the court’s jurisdiction and unavailable to obey the court’s mandate. Finally, defendant’s rule barring the use of discretion would run directly contrary to the very purpose of the statutory scheme affording intermediate appellate courts discretion to review 440 denials in the first place: conserving judicial resources. Without discretion to dismiss, intermediate appellate courts would be forced to review proceedings of unavailable defendants, perhaps many years after the conviction was obtained, even though those defendants were unavailable for future 22 proceedings. Perhaps even worse, a judge considering whether to grant an appeal of a defendant in deportation proceedings may well simply deny it so that the court will not be forced into a position of unnecessarily expending judicial resources, thereby limiting review for deportable, but not yet deported, defendants who might otherwise be worthy of it. Thus, the rule defendant now suggests is not only legally unsupportable, it is unsound policy. A. The Court Had Statutory Discretion to Order the Dismissal of Defendant’s Discretionary Appeal Due to His Deportation, Just as this Court Did in People v. Diaz, 7 N.Y.3d 831 (2006). The provisions of the Criminal Procedure Law governing appeals grants broad discretionary authority to the Appellate Divisions to dismiss appeals, as this Court has expressly recognized. Ventura, 17 N.Y.3d 675, 681; People v. Taveras, 10 N.Y.3d 227, 233 (2008). By statute, that authority is only reviewable here for an abuse of discretion. C.P.L. § 470.60(3). This Court has similar discretionary authority to dismiss appeals, and has exercised that discretion, afforded under the same statutory provision as the Appellate Division, to dismiss the appeals of involuntarily deported defendants who have been granted discretionary review in this Court because those defendants are no longer available to obey the mandates of the court. See People v. Mark, 8 N.Y.3d 907 (2007); People v. Diaz, 7 N.Y.3d 831 (2006). The Appellate Division here did no more than that – dismiss the wholly discretionary appeal of a defendant no longer available to obey the mandate of the court, citing this Court’s decisions in Diaz and Mark. The Appellate Division did not abuse its discretion in so doing. 23 Under section 470.60 of the Criminal Procedure Law, an appellate court may dismiss an appeal “upon the ground of mootness, lack of jurisdiction[,] . . . failure of timely prosecution or perfection thereof, or other substantial defect, irregularity or failure of action by the appellant with respect to the prosecution . . . of such appeal.” As this Court has recognized, this section grants “broad authority” to New York appellate courts to dismiss appeals. See Ventura, 17 N.Y.3d at 680. This is part of the more general discretion of the Appellate Divisions with respect to the control of their own calendars. See People v. Campbell, 90 N.Y.2d 852, 853 (1997) (Appellate Division’s denial of defendant’s motion to enlarge record to include grand jury transcripts not abuse of discretion as a matter of law); People v. Fratta, 83 N.Y.2d 771 (1994) (Appellate Division’s denial of motion for permission to file supplemental brief was within that court’s discretion to control its own calendar). This discretion to dismiss the appeal can be exercised at any time while an appeal is pending before the court. Furthermore, section 470.60 of the Criminal Procedure Law applies to both the intermediate appellate courts and this Court alike. People v. Taveras, 10 N.Y.3d 227, 233 (2008); People v. Bautista, 7 N.Y.3d 838, 839 (2006). Both this Court and intermediate appellate courts have exercised their discretion to grant dismissals where the defendant is outside the jurisdiction and no longer available to obey the mandate of the court. Indeed, New York courts have long refused to consider the appeal of a defendant who is not within “the power, and under the control of the court, in his person.” People v. Genet, 59 N.Y. 80, 81 (1874); 24 see People v. Pamaklidis, 38 N.Y.2d 1005 (1976); People v. Del Rio, 14 N.Y.2d 165, 168-69 (1964), cert. denied, 379 U.S. 939 (1964). The theory behind these dismissals is that the absent party is unavailable for future proceedings should they become necessary. See Del Rio, 14 N.Y.2d at 169; see also People v. Watson, 99 N.Y.2d 570 (2003); People v. Johnson, 99 N.Y.2d 570 (2003); People v. Mongen, 76 N.Y.2d 1015 (1990); People v. Headley, 72 N.Y.2d 931, 932 (1988); People v. Jiminez, 71 N.Y.2d 963 (1988); In re Robert E., 68 N.Y.2d 920 (1986); People v. Sullivan, 28 N.Y.2d 900, 901 (1971). This rule has been enforced against the appealing party even when that party bears no fault for the absence necessitating the dismissal. Thus, for example, in People v. Gomcin, 95 N.Y.2d 821 (2000), this court dismissed a People’s appeal to this Court on the ground that the defendant, who had absconded, was unavailable to obey the mandate of the court, even though the People were in no sense at fault for defendant’s absence. This Court has also applied this rule on at least two occasions to involuntarily deported defendants. In People v. Diaz, 7 N.Y.3d at 831, this Court exercised its discretion under section 470.60 to dismiss just such an appeal. This Court, quoting People v. Genet, 59 N.Y. 80, 81 (1874), noted that “[t]he 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.” 7 N.Y.3d at 831-32. The Court dismissed the appeal on this ground, reasoning that “[a]lthough defendant here has been involuntarily deported, he is nevertheless unavailable to obey the mandate of 25 this Court.” Id. at 832. Similarly, in People v. Mark, 8 N.Y.3d 907 (2007), this Court dismissed the appeal of an involuntarily deported defendant, citing Diaz. Where an intermediate appellate court exercises its discretion to dismiss an appeal, review in this Court is limited by statute to a determination of whether “the dismissal was invalid as a matter of law or . . . constituted an abuse of discretion.” C.P.L. § 470.60(3). See also People v. Perry, 36 N.Y.2d 114, 121 (1975); People v. Eldridge, 31 N.Y.2d 820, 821 (1972), cert. denied, 412 U.S. 909 (1973) (“The Court of Appeals customarily declines to review the type of discretion exercised by the intermediate appellate court in this case [dismissing an appeal for the failure to file a return]”); see also People v. Belge, 41 N.Y.2d 60, 62 (1976) (trial court’s dismissal of indictment in interest of justice “is outside the [Court of Appeals’s] review, unless it could be said that there was an abuse of discretion as a matter of law.”). If there is “[n]o substantial question of abuse as a matter of law by the Appellate Division” and the exercise of that discretion is not “so outrageous as to shock the conscience,” this Court does not have the power to replace its discretionary judgment for that of the Appellate Division. In re Von Bulow, 63 N.Y.2d 221, 225-26 (1984). Here, the Appellate Division did not abuse its discretion and its determination was not erroneous as a matter of law. Indeed, the Appellate Division correctly determined that this case was similar to People v. Diaz, 7 N.Y.3d 831 (2006), in all relevant respects. Even though defendant had been involuntarily deported, his appeal, like Diaz’s, was discretionary in nature. Moreover, defendant, like Diaz, had already received the first, mandatory 26 full round of merits review by a lower court. Similarly, defendant was not available to obey the mandate of the court, and his presence would become necessary if he succeeded in his claim. Defendant had argued that the court below should have granted a hearing on his claim, and defendant would not be available for such a hearing. Nor was the Appellate Division required to accept defendant’s substitutes for his actual presence. First, the rule espoused by this Court requires that the defendant be “in the power, and under the control of the court, in his person.” Diaz, 7 N.Y.3d at 831-32. This defendant was in no sense under the control, power, or jurisdiction of the Appellate Division, nor would it be under the control or jurisdiction of the trial court. Moreover, the Appellate Division could properly look with skepticism on the hearing by two-way video conferencing offered by defendant. As defendant6 here has acknowledged, he was “likely” to testify on remand if a hearing were granted (Defendant’s Brief at 24). But his oath would necessarily be taken in a foreign jurisdiction, and, if he committed perjury, defendant could not be prosecuted extraterritorially. Indeed, the state could in no way force a foreign jurisdiction to Indeed, videoconference proceedings have many shortcomings. As many courts have6 recognized, “Virtual reality is rarely a substitute for actual presence and . . . even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it.” United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001). “The immediacy of a living person is lost” with video technology. Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993). As the court in Edwards v. Logan, 38 F. Supp. 2d 463 (W.D. Va. 1999), observed, “Video conferencing . . . is not the same as actual presence, and it is to be expected that the ability to observe demeanor, central to the fact-finding process, may be lessened in a particular case by video conferencing.” 38 F. Supp. 2d at 467. 27 prosecute defendant in its courts. Nor was the state obligated to return defendant to New York to prosecute him, as doing so would reward him with exactly what he sought, a return to this country, for his perjury. Nor was the prospect of perjury in any way fanciful in this case – defendant’s allegations that his attorney misadvised him regarding immigration consequences surfaced for the first time years after the plea and even years after removal proceedings were commenced and after defendant’s immigration appeal was heard. Moreover, defendant’s allegations were dubious in light of the court’s immigration warnings during the plea, made in the full presence of both the defendant and his attorney and in no way disputed by defendant. The Appellate Division, thus, was rightly concerned that any testimony from the defendant would be suspect and that without any realistic sanction for perjury, defendant might feel free to mislead the court with impunity. Accordingly, defendant’s actual presence in the jurisdiction was critical in this case – all the more reason for the Appellate Division to insist that the defendant be “within the jurisdiction” of the court. Similarly, the cases cited by defendant in which video-conferencing was used are unavailing. In almost all of those cases, the defendants were in the United States, albeit in other states (Defendant’s Brief, p. 25-26). Those defendants could7 be prosecuted locally for perjury, as they were undoubtedly aware, and returning them to New York would not necessitate bringing them back from a foreign jurisdiction, People v. Roberts, 36 Misc.3d 1239(A), 964 N.Y.S.2d 62 (Sup. Ct. N.Y. County 2012);7 People v. Gasperd, 33 Misc. 3d 1228(A), 939 N.Y.S.2d 742 (Sup. Ct. Kings County 2011); People v. Mohammed, Docket No. 2008KN046059 (Sup. Ct. Kings County 2012); People v. Paredes, Ind. 1104/04 (Sup. Ct., N.Y. County 2010). 28 giving them what they sought in the first instance. Moreover, the sole case arguably supporting defendant’s position here in which the First Department permitted testimony by “Skype” from a foreign jurisdiction, see Defendant’s Brief, p. 26, is not dispositive. The mere fact that a different court chose to exercise its discretion differently does not render the Second Department’s dismissal an abuse of discretion. Equally inapposite is this Court’s decision in People v. Wrotten, 14 N.Y.3d 33 (2009). Indeed, that case made clear that the procedure chosen by the court below was an exercise of that court’s discretion under its inherent powers under the Judiciary Law. Thus, while the lower court in that case had the discretion to choose such a procedure, it was not required to do so, and could assess the individual facts and circumstances of the case to determine whether such a procedure made sense. Id. at 38 (“such witnesses' testimony via two-way televised transmission is presumably left to the trial court's discretion”); id. at 40 (“Supreme Court retained discretion . . . to determine what steps, if any, could be taken”). The Appellate Division here did no more: it exercised its discretion to reject such an option, particularly given the realistic possibility of perjury here and the difficulty of extraterritorial perjury prosecutions. The Wrotten case, then, simply does not support an outright ban on the use of discretion by a court that possesses it. Similarly unavailing is the highly speculative prospect that the United States Attorney General might excuse defendant from the statutory immigration bars applicable to him. Initially, defendant incorrectly asserts that even though he was deported, he is still “admissible,” i.e., he could now be readmitted to this country. 29 The Immigration and Naturalization Act specifically provides that a non-citizen defendant who has been removed is considered “inadmissible” for this reason alone for a period of at least ten years. 8 U.S.C. § 1182(a)(9)(A)(ii). Nor is there good reason to believe that the Attorney General would grant an exception to defendant. Defendant cites no case in which readmission was allowed to a recently removed defendant, much less one convicted of a firearm felony, nor does defendant even allege that he began or realistically entertained the process of making such an application. Similarly, defendant’s purported application for release to parole8 provides only the most speculative basis to believe defendant would be readmitted. While the Attorney General has the authority to temporarily parole someone into this country, defendant cites to no case in which a convicted defendant was allowed to return under this section. Nor were either of these alternatives unavailable to defendants when this Court decided Diaz and Mark. Indeed, the Attorney General’s general authority to allow re-admission to aliens for whatever reasons he or she deems sufficient has always been in existence, and two-way video conferencing was similarly available Notably, defendant has abandoned his prior reliance on a misleading statistic cited8 below that “35% of immigrants in [defendant’s] position, seeking waivers of 8 U.S.C. § 1182(a)(9)(A)(ii), overcame their ineligibility for such visas.” (A: 175). The statistic refers generically to the broadest category of offenses under the immigration law, “crimes of moral turpitude,” and does not disclose how many, if any, of these applicants had been convicted of felony firearms offenses, like defendant here. It also does not disclose whether these defendants had been removed within the past ten years, like defendant here. Moreover, even the highly inflated number cited by defendant went down dramatically in the succeeding two years. See http://travel.state.gov/content/ dam/visas/Statistics/AnnualReports/FY2012 AnnualReport/FY12AnnualReport-TableXX.pdf (less than 25% of those convicted of crimes of moral turpitude awarded visas). 30 eight years ago, in 2006 and 2007, when Mark and Diaz were decided. Thus, these9 possibilities do not provide meaningful distinctions between those decisions of this Court and the Appellate Division’s decision here. 10 In addition, the Appellate Division’s dismissal order did not preclude defendant, if he ever did obtain an exception and return to the jurisdiction, from seeking to reinstate his appeal. This aspect of the order is further proof that the Appellate Division properly exercised its discretion by declining to expend its resources on a case of an absent party. The Appellate Division’s limitation of the effect of its order – just like this Court’s order in Diaz – demonstrates the reasoned approach the Appellate Division took toward the dismissal. Moreover, defendant’s proposed rule is far broader than this individual case. It would require the extraordinary step of banning the use of discretion on a ground that this Court has otherwise found worthy of the exercise of that discretion: the dismissal of a permissive appeal based on the unavailability of an involuntarily deported defendant where his presence would be required if he succeeded. Even if, Video conferencing became available commercially in the 1980’s and was mass-9 marketed by 2003. See http://www.nefsis.com/Best-Video-Conferencing -Software/video-conferencing-history.html (accessed June 29, 2015); https://en.wikipedia. org/wiki/Skype (accessed June 29, 2015). See also Thornton v. Snyder, 428 F.3d 690 (7th Cir. Ill. 2005). See also United States v. Baker, 45 F.3d 837 (4th Cir. 1995) (challenge to use of videoconferencing in civil commitment proceeding). Defendant also suggests in a footnote that he could waive his appearance at the any10 future proceedings (Defendant’s Brief, p. 14 n. 7). As noted above, however, he indicates in the text of his brief that he would be “likely” to testify at such a hearing, and thus not waive his appearance (Defendant’s Brief at 24). And in the absence of such testimony, he would in all likelihood be unable to sustain his burden, as he is apparently aware. 31 in some instances, it might be appropriate to allow defendant to pursue an appeal, such a uniform ban on the exercise of discretion would not be appropriate. Furthermore, such a rule would be particularly inappropriate in the context of a permissive appeal. Under defendant’s theory, the Appellate Division would retain discretion to decline to hear a defendant’s appeal up until the moment it granted leave, but would lose its discretion to dismiss an appeal immediately afterward. This could have a deterrent effect on appellate courts; indeed, a court might, in learning that a defendant might be deported, decline to hear his or her appeal at all rather than grant leave and risk being forced to decide an appeal for a recently deported defendant. This would, inevitably, have an undesirable chilling effect on defendants’ discretionary appeals. In short, defendant here has made no showing whatsoever of an abuse of discretion by the Appellate Division. There was no question that defendant had been deported and was unavailable. Although dismissal of the appeal of an unavailable litigant was not mandated, it was not an abuse of discretion to issue such an order. Diaz, 7 N.Y.3d at 832. The court had the authority to refrain from expending its resources to hear and decide a discretionary appeal where there could be no compliance with the decision. Indeed, “courts should not expend resources hearing an appeal when any judgment they would issue could not be enforced.” People v. Taveras, 10 N.Y.3d 227, 232 (2008). Therefore, the Appellate Division acted within its authority to refuse to decide the appeal of the party invoking the 32 court’s jurisdiction who was unavailable to obey the Court’s mandate in the event of a successful appeal. Furthermore, contrary to defendant’s claim, the Appellate Division’s dismissal of the appeal here did not conflict with the decision in People v. Badia, 106 A.D.3d 514 (1 Dept. 2013). In Badia, the First Department held that the lower courtst improperly dismissed the defendant’s motion to vacate his judgment of conviction – based on a Padilla claim of ineffective assistance – on the ground that the defendant had been deported. Id. But, there, unlike here, because the lower court dismissed the claim, the defendant never had an opportunity to assert his off-the-record ineffective assistance claim. Here, in contrast, as discussed above, defendant asserted his claim in the lower court, and that court rejected it on its merits. And, as discussed above, defendant’s appeal to the Appellate Division was not his right, but rather an exercise of this Court’s discretion. Thus, this Court acted well within its discretion in dismissing defendant’s appeal because he is deported and unavailable. Neither does the Third Department’s decision in People v. Carty, 96 A.D.3d 1093 (3d Dept. 2012), conflict with the Appellate Division’s decision here. Indeed, in Carty, the court said no more than that it “decline[d] to dismiss this appeal” on the ground that defendant had been deported – not that it had no authority to do so. The fact that that appellate court, when faced with an unavailable and deported defendant, chose to exercise its discretion differently than this Court does not mean that the Second Department’s dismissal of the appeal was improper. It means only that two courts properly exercised their statutorily-authorized discretion differently. 33 Accordingly, this Court should not deprive intermediate courts of their discretion, but rather, allow them to exercise it on the basis of the individual details of the cases pending before them. Defendant’s out-of-state cases fair no better. While in those handful of cases, courts chose to consider the appeals of deported defendants, they show no more than Carty – that courts considering different cases may exercise their discretion differently. Moreover, in none of those cases was a valid motion to dismiss made11 on this ground by the prosecution, and thus the decisions in those cases did not address the issue presented here: whether the court was required to hear the appeal, or could, if it wished, dismiss it in the exercise of its discretion. Thus, none of these cases provided the necessary support for defendant’s position. All of these circumstances – defendant’s unavailability, the likelihood of a mandate that could not be obeyed, support from Court of Appeals’ precedent, and defendant’s ability to seek permission to reinstate the appeal – point to the conclusion that the Appellate Division’s dismissal order was not an abuse of discretion and should be affirmed. United States v. Flores, 2013 WL 5670924 (S.D. Cal. 2013); Comm. v. Dias, 201511 WL 711589 (Mass. App. Ct. 2015); People v. Guzman, 962 N.E.2d 1182 (Il. App. 3d 2011); Popoca-Garcia v. State, 334 P.3d 824 (Idaho Ct App. 2014); State v. Garricks, 2013 WL 1830813 (N.J. Super. Ct. App. Div. 2013); State v. Cabanillas, 2012 WL 2783182 (Ariz. Ct. App. 2012). 34 B. Contrary To Defendant’s Contention, He Is Not “Entitled To At Least One Opportunity For Appellate Review” Of His Claim Under The Statutes Governing Collateral Appeals. In his brief, defendant premises his right to bar the Appellate Division from exercising its discretion on the ground that he is “entitled to at least one opportunity for appellate review” of his ineffective assistance of counsel claim brought on collateral review (see Defendant’s Brief at 16). This is decidedly incorrect, as the appeal to an intermediate appellate court on collateral review is entirely permissive in nature, and his claim reflects a fundamental misunderstanding of the statutory schemes for post-conviction relief. He thus cannot prevail on this ground. The post-conviction review process is a statutory creation in New York. People v. Andrews, 23 N.Y.3d 605, 610 (2014), rearg. denied, 24 N.Y.3d 937 (2014); see e.g. People v. Romero, 7 N.Y.3d 633, 636–637 (2006); People v. West, 100 N.Y.2d 23, 26 (2003), cert. denied 540 U.S. 1019 (2003); People v. Stevens, 91 N.Y.2d 270, 277 (1998). The statutory schemes for post-conviction review are divided into two parts: direct appellate review of the judgment of conviction, which occurs as of right in the intermediate appellate courts, and collateral review, which occurs in the trial court, subject only to permissive review in the appellate courts. The two appeals processes are statutorily defined and remain separate and distinct in the Criminal Procedure Law. Indeed, the Legislature’s intention to keep these two different types of appeals separate – thus ensuring they are treated differently – is reflected in the language and history of these statutes. 35 Specifically, direct appeal of a judgment of conviction is authorized by article 450 of the Criminal Procedure Law. There is a right to a first-tier, direct appeal to an intermediate appellate court, whereas secondary review is discretionary. Andrews, 23 N.Y.3d at 610. As a matter of fundamental fairness, all criminal defendants have an absolute right to avail themselves of intermediate appellate courts on direct review. People v. Perez, 23 N.Y.3d 89, 104 (2014), cert denied sub nom. Dockery v. New York, 135 S. Ct. 229 (2014), and cert denied sub nom. Calaff v. New York, 135 S. Ct. 273 (2014); Ventura, 17 N.Y.3d at 680-681. By contrast, in 1970, the Legislature created section 440.10 of the Criminal Procedure Law, providing for a first round of collateral review in the trial court. Under this provision, defendants are permitted to file such collateral motions on virtually any ground pertaining to off-the-record matters, without any time limitation. Defendants may also file multiple applications, and often do, although they may run afoul of various procedural bars that a court may choose to apply, or may refrain from applying. See C.P.L. § 440.10(3). At the same time that the Legislature granted this plenary collateral review at the trial level, it curtailed appeals arising out of collateral review, restricting their availability only to a discretionary procedure involving the granting of permission by a single Justice of the Appellate Division, before a full panel is allowed to review the merits. People v. Farrell, 85 N.Y.2d 60, 63 (1995). Specifically, section 450.15 of the Criminal Procedure Law authorizes appeals by defendants only upon application for leave to appeal, the specific process for which is set forth in 36 section 460.10(4) of the Criminal Procedure Law. Denials of motions to vacate judgments made pursuant to section 440.10 of the Criminal Procedure Law were specifically “excluded from the as-of-right protocol.” Farrell, 85 N.Y.2d at 65. This procedure was designed to streamline the appeals process, allowing one Justice to select the cases which were worthy of the court’s review. The procedure is thus designed to conserve judicial resources, which is particularly necessary in this context because there are few, if any, limits on the filing of motions under section 440.10. Id. at 67. This Court has found this statutory scheme of collateral review, including the limitations on appellate review, to be constitutional. This Court specifically so held in People v. Farrell, finding that the New York Constitution “[did] not restrict the Legislature from limiting a defendant’s right to appeal from nonfinal postjudgment collateral criminal proceeding orders denying vacatur of final judgments of conviction.” 85 N.Y.2d at 63. Thus, under this statutory scheme, criminal defendants do not have a right to an appeal taken after collateral review, a result specifically intended by the Legislature’s design. Indeed, most leave applications predicated upon denials of post-conviction motions are denied, with the result that the plea or trial courts’ decisions in those cases stand without a full appellate review process. The Legislature specifically intended for this to be the case; indeed, had the Legislature wished to provide an appellate review for every criminal defendant upon collateral review, that provision would have been written into the law. On its face, however, 37 the Criminal Procedure Law is very clear in its intentionally disparate treatment of direct appeals and collateral appeals. Direct appeals are afforded to defendants as of right; permissive appeals are not.12 For this reason, defendant’s claim that he is “entitled” to at least one opportunity for appellate review fundamentally misconstrues the appeals process. Indeed, defendant had no right to have his appeal heard, and could only obtain permissive review. And, while defendant is correct in his assertion that an appeal would be the first opportunity to have an appellate court review his claim, it does not mean that he received no review at all. Indeed, defendant does not dispute that he received an initial review of his claim in the lower court – the primary forum that the Legislature designated for collateral review – which considered his claim and denied it on the merits. Thus, an appellate review does not, as defendant now claims, represent his only opportunity for review of his collateral claims. Moreover, the entire purpose of the discretionary nature of collateral review is to conserve judicial resources, specifically of the intermediate appellate courts, which already have burgeoning appellate dockets. Indeed, the mere existence of a separate section of the Criminal Procedure Law for permissive appeals indicates Indeed, direct and permissive appeals are treated differently in that, while defendants must12 be represented by an attorney for their direct appeal, there is no constitutional right to representation by counsel for collateral appeals. Coleman v. Thompson, 501 U.S. 722, 752 (1991); Murden v. Artuz, 497 F.3d 178, 194 (2d Cir. 2007); United States v. Doe, 365 F.3d 150, 155 (2d Cir. 2004). Indeed, the “right to appointed counsel extends to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 US 551, 555 (1987). Of course, a court may, in its discretion, appint counsel should the court consider the claim worthy. See People v. Jie Mei Chen, 26 A.D.3d 344 (2d Dept. 2006) 38 a desire to limit those appeals which can be placed upon an appellate court’s docket. Forcing intermediate appellate courts to hear appeals of deported defendants runs directly contrary to this objective. Nor is the Legislature’s concern over such resources an insubstantial one. This Court has itself repeatedly granted discretion to lower courts on myriad issues to conserve judicial economy. People v. Mendoza, 82 N.Y.2d 415, 429 (1993) (court may consider a Mapp motion alongside Wade or Huntley issues despite a perceived pleading deficiency in the interest of judicial economy); People v. Ricardo B., 73 N.Y.2d 228, 232 (1989) (judicial economy encourages joining charges and parties); People v. Alvino, 71 N.Y.2d 233, 248 (1987) (judicial economy the basis for extrinsic evidence rule to prevent needless multiplication of issues in a case); People v. Tineo, 64 N.Y.2d 531, 537 (1985) (judicial economy supported denying a motion for reinstatement); People v. Drayton, 39 N.Y.2d 580, 585-86 (1976) (judicial economy removed requirement for investigation for purpose of determining youthful offender eligibility); People v. Spencer, 32 N.Y.2d 446, 451 (1973) (coram nobis petition denied on basis of judicial economy where no cognizable constitutional issue). Thus, both this Court and the Legislature have shared the concern that the judicial resources of the Appellate Divisions not be overburdened by unnecessary appeals. Appeals of involuntarily deported defendants who are legally and practically unavailable for further proceedings often present such unnecessary appellate litigation, particularly where they are deported on more than one ground and there is no prospect of the defendant 39 ever being allowed to return. The Appellate Divisions should be allowed to dismiss those appeals where otherwise appropriate. Defendant contends that motions pursuant to section 440.10 of the Criminal Procedure Law present the only avenues for defendants to raise claims such as ineffective assistance of counsel at a plea (Defendant’s Brief at 20). While these types of motions may be the appropriate avenue for a defendant to raise such off-the- record claims, this type of review, under the time-tested legislative scheme, is to be had primarily in the trial or plea court. Defendant obtained such review, and dismissal of his discretionary appeal put him in no worse position than the vast majority of defendants, who never obtain further review. Accordingly, defendant’s claim that he is “entitled” to at least one appellate review of his claims is belied by the Criminal Procedure Law. An appeal following collateral review is permissive in nature, unlike the appeal of a defendant on direct review, whose right to review is mandatory. Such a supposed “entitlement,” then, cannot provide the basis for defendant’s rule banning the use of discretion by the Appellate Divisions to dismiss discretionary appeals. C. The Extraordinary Ban on the Use of Discretion Carved out in People v. Ventura, 17 N.Y.3d 675 (2011), Should Not Be Extended to Circumstances Where the Factors Compelling the Rule No Longer Apply. This Court’s decision in Ventura, 17 N.Y.3d at 675, does not mandate a reversal. While this Court took the unusual step of limiting the Appellate Divisions’ discretion under the statute, there are a number of factors that distinguish Ventura from the instant case and that decision should not be expanded to further 40 curtail the statutory scheme. Specifically, unlike in Ventura, but like Diaz, defendant’s appeal was discretionary, not as of right. Furthermore, here, defendant obtained a full merits review of his claim and was deprived only of a second round of review. Finally, unlike in Ventura, defendant’s presence here was required if he was successful in the Appellate Division, and defendant’s proposed alternatives for his “appearance” were inadequate. For these reasons, this Court should decline to extend the rule in Ventura to cases heard on discretionary review. In Ventura, this Court held that the Appellate Division abused its discretion when it dismissed the defendants’ direct appeals due to their deportation. Ventura, 17 N.Y.3d at 678. In reaching that conclusion, the Court relied heavily on a defendant’s absolute statutory right to a direct appeal and reasoned that dismissing the defendant’s direct appeal completely foreclosed intermediate appellate review. Id. at 680-81. Indeed, this Court specifically cited to section 450.10 of the Criminal Procedure Law, noting that, under that section, the defendants in that case “had an absolute right to seek appellate review of their convictions.” Id. at 679. The Court recognized that the Appellate Divisions generally have “broad authority” to dismiss appeals but held that defendants’ “basic entitlement to appellate consideration,” required that the discretion be curtailed under the limited circumstances present there. Id. at 681-82. This Court then again cited defendants’ “absolute right to seek review in criminal prosecutions,” holding that all criminal defendants must be allowed to avail themselves of that absolute right. In addition, the Court distinguished Diaz specifically on the ground that in that case, this Court was exercising permissive 41 appellate jurisdiction, while in Ventura, the Appellate Division was not: “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.” Id. at 680. The Court also relied on the fact that the defendants in those cases had never received any review of the claims they raised on direct appeal. The Court noted that in Diaz and similar cases, the defendants had obtained prior review of their claims “in satisfaction of their statutory right.” Id. at 680. In addition, the Court held that the perceived inability to obey the mandate of the court was not implicated in Ventura because “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.” Id. at 682. These foundations of the rule in Ventura are not present here. First, here, as explained at length above, defendant had no “absolute right” or “basic entitlement” to appellate review of the denial of his 440.10 motion. The appeal, by design, was entirely discretionary. Because this provided the central foundation for the ruling in Ventura, this distinction is dispositive. Moreover, the fact that the appeal dismissed here was permissive in nature likened this case to Diaz. Indeed, Ventura drew the distinction between the proper dismissals in Diaz and the improper ones in Ventura as founded on the permissive nature of the appeal in Diaz and the absolute right to the appeals in Ventura. This case, as the Appellate Division correctly determined, fell 42 on the Diaz side of this line, as it was a permissive appeal, not one to which defendant had an absolute right. Second, defendant here received a full merits review of his claim, unlike the defendants in Ventura. Defendant obtained the first-round review afforded to defendants under the post-conviction statutory scheme in section 440.10, although he did not get the result he had hoped for. By contrast, in Ventura, the defendants had not had any level of review – in a lower court or from an appellate court – and, thus, the defendants had been deprived of any review of their claim. Moreover, the review defendant received here constituted “satisfaction of [his] statutory right” – he got the review he was mandatorily entitled to, just like the defendant in Diaz. Indeed, here again, this Court distinguished Diaz because the defendant in that case got what he was entitled to – mandatory review in the Appellate Division – and was deprived of only what was discretionary. Here too, this case fell on the Diaz side of the line, as defendant got the statutorily mandated review and was deprived of only discretionary review. Third, defendant’s case is clearly distinguishable from Ventura on the ground that the defendants in that case raised claims that did not require their continued presence in the jurisdiction. There, the defendants sought only dismissal of the indictments, and whether granted or denied, the defendants’ presence was no longer needed. Here, defendant’s claim was the polar opposite; it required defendant’s presence for the very hearing he was seeking, and if successful, would have required his presence at a new trial on the charges. Because defendant could not 43 be present for those proceedings in any meaningful way, his case was materially distinct from those of the defendants in Ventura. 13 Moreover, while it is true that this Court observed in Ventura that the defendants there could not be blamed for their absence because they were involuntarily deported, and that this set them apart from defendants in other cases who had absconded, this was not the determinative rationale of Ventura. Indeed, this Court did not overrule or repudiate its own prior dismissals of involuntarily deported defendants in Diaz and Mark. Instead, it distinguished those cases on the grounds noted above, which were dispositive in Ventura and which compel the conclusion here that the Appellate Division had the discretion to dismiss on this ground. Thus, the determinative reasoning compelling the result in Ventura is not applicable to this case. Because the defendant received what he was entitled to under the statutory scheme pertaining to collateral review, because he was not entitled as of right to further review, because his presence would have been required if Defendant's claim that he would return to the country and would faithfully serve a13 much longer prison sentence than he had already served if he lost after a trial is dubious at best. Indeed, if defendant prevailed at the appellate level, he may well be content to let the decision stand without returning to the United States for retrial; under those circumstances, the Appellate Division might give defendant his plea back, returning him to a pre-pleading status and erasing any conviction, only for defendant to avoid further prosecution. Moreover, the case against defendant was strong, and he would likely be convicted at trial, thus lessening his incentive to return for a retrial. Indeed, defendant was charged with simple gun possession, and the evidence against him was compelling: a police officer witnessed defendant throw a loaded, defaced, and operable gun to the ground, and the officer recovered the gun from the ground and the rifle ammunition from defendant’s pocket. And while defendant could waive his presence at trial or, perhaps, even testify via video conference, he certainly could not serve his prison sentence via video-conferencing. Thus, defendant's claim that he would return to face reprosecution is belied by the strength of the People's evidence against him, and this Court should reject it. 44 successful, and because all of these factors likened this case to Diaz and distinguished it from Ventura, the Appellate Division correctly determined that Diaz controlled and it could exercise its discretion to dismiss defendant’s appeal. And because the rule in Ventura was an unusual, indeed exceptional, ban on the use of discretion afforded by the statute, that rule should not extended beyond the rationale that required it. D. Defendant Was Not Treated Unfairly by the Dismissal Because He Had Obtained Full Merits Review of His Claim, He Did Not Allege His Innocence or Any Viable Defense to the Charge, and His Claim Was Ultimately Unconvincing at Best, Particularly in Light of the Admonitions Given to Defendant at the Time of the Plea. Defendant claims that he was treated unfairly and was denied any chance to have his ineffectiveness claim reviewed. This is critical, according to defendant, because his claim was a viable one and because collateral review was his only means of presenting it. Defendant, however, received a full merits review of his claim by the lower court, which rejected his motion in its entirety. Moreover, as that court found, defendant’s claim was meritless, and he would be unlikely to gain a reversal of the lower court’s decision upon a second, appellate-level review. First, contrary to defendant’s assertion, defendant already had the opportunity to and did assert his ineffective assistance claim in the lower court, pursuant to section 440.10 of the Criminal Procedure Law. And that court summarily denied the claim on its merits, not on procedural grounds. Indeed, in a seven-page written decision, the lower court held that defendant had failed to make an affirmative showing that he suffered prejudice as a result of counsel’s alleged ineffectiveness and denied defendant’s ineffective-assistance claim on the merits pursuant to sections 45 440.30(4)(d)(i) and (ii), as an allegation of fact essential to support the motion was made solely by defendant and unsupported by any other affidavit or evidence and under the circumstances of the case, there was no remote possibility that the allegations were true. Thus, defendant’s claim that he was unable to present his ineffectiveness claim or deprived of review of it is factually incorrect. Second, defendant would have been unlikely to succeed on appeal. Indeed, the lower court properly exercised its discretion in summarily denying defendant’s motion, as defendant failed to establish that but for the erroneous advice he would not have accepted the plea and that his decision to plead guilty was not rational under the circumstances. The 440 court pointed out that, at the time of the plea, the plea court informed defendant that he could not withdraw the plea if it had negative immigration consequences, and thus his prejudice claim was meritless (A: 60). Similarly, defendant signed a written waiver informing him that there might be immigration consequences to his plea and acknowledging that he understood that his plea would be valid regardless of any such consequences (A: 57). Thus, defendant was well aware that he might be deported as a result of the plea, but was willing to take the plea in any event. Moreover, defendant had few options, from an immigration point of view. He could take the plea, and accept that he might be deported, or go to trial and, given the strength of the evidence against him, more than likely be convicted, serve far more jail time, and then be deported in any event. Thus, given the overwhelming14 The only practical way to ensure that he could avoid deportation, in fact, would be to plead14 guilty to certain specific non-firearm misdemeanors or violations. Considering that this was a 46 likelihood of deportation with or without going to trial, immigration was simply not a logical factor in the calculus defendant faced. Consequently, the 440 court correctly denied defendant’s claim pursuant to section 440.30(4)(d)(i) and (ii) of the Criminal Procedure Law, as “an allegation of fact essential to support the motion was made solely by defendant and unsupported by any other affidavit or evidence” and under the circumstances of the case, “there was no reasonable possibility” that the allegations were true. Accordingly, defendant would be unlikely to succeed on appeal. Third, defendant did not claim he was innocent of the crime. Indeed, in its decision, the lower court noted that, in his affidavit in support of the motion, defendant had not asserted his innocence, articulated any defenses that he might have raised at trial, or offered any facts that raised the possibility of acquittal. And contrary to any claim of innocence, the evidence against defendant was quite strong: a police officer witnessed defendant throw a loaded, defaced, and operable gun to the ground when he tried to flee from the officer who was simply trying to give him a ticket for riding his bicycle on the sidewalk, and the officer recovered the gun from the ground and the rifle ammunition from defendant’s pocket. This was not a case where there were issues that, at trial, the defense could attack in the hopes of getting an acquittal. Instead it was a simple possession case based on the anticipated testimony of a police-officer witness who was already focused on defendant when firearm offense, that there is no evidence that the People would ever have offered a non-firearm misdemeanor or violation, and that defendant has never criticized counsel for not pursuing that option, the viability of non-deportation as an alternative was absolutely minimal at best. 47 defendant threw the gun because he was trying to stop defendant to ticket him for something else. Defendant claims that he spent three years in a detention facility in the hopes of avoiding deportation, and that this detention somehow demonstrates that his claim had merit. This argument too is unavailing. While the detention may show that defendant understandably sought to pursue his legal rights under immigration law to avoid deportation, it does not change the fact that defendant specifically acknowledged at the time of the plea, orally and in writing, that he understood the risk that he would be deported and that he knew he would be unable to withdraw his plea in the event there were adverse immigration consequences. In short, defendant assumed the risk of the deportation, which is exactly what occurred. Nor was there an unfair Catch-22 that trapped defendant, as he alleges. According to defendant, that situation arose because he was deported due to his conviction but could not challenge his conviction because he was deported. Contrary to these assertions, defendant did have the opportunity to challenge his conviction on ineffective counsel grounds and did obtain review of his claims, but they were simply found wanting. Moreover, had his claims had greater merit, the Appellate Division may well have declined to dismiss the appeal. They did not, however, and the dismissal was entirely justified. Finally, a defendant whose appeal has been dismissed in the Appellate Division is not without further recourse. Indeed, under C.P.L. 470.60(3), any defendant may seek leave to appeal such a dismissal. This provides not only an 48 opportunity for further review for a defendant that would not be available to a defendant whose appeal to the intermediate court had been denied in the first instance, it provides a means through which this Court may ensure that the dismissal of appeals is not exercised in an improper or excessive way. This provides yet another check on the process, further ensuring its ultimate fairness. Because defendant obtained full review of his claim – although not in the discretionary forum of his choice; because that claim was highly debatable at best; and because defendant had no viable claim of innocence in the post-conviction proceedings, no general “unfairness” commanded review of his claim. To the contrary, defendant got the statutory review to which he was entitled, and was in no worse position than the vast majority of defendants on collateral review who do not have their claims heard. Indeed, if anything, this defendant got more review than those defendants, both because the merits of defendant’s claims were briefed in the Appellate Division before and in the motion to dismiss, and because the Appellate Division’s dismissal of the appeal is subject to review in this Court. Defendant was “entitled” to no more under the legislative scheme, or this Court’s decision in Ventura. 49 CONCLUSION The order of the Appellate Division dismissing defendant’s appeal should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ________________________ DEBORAH E. WASSEL Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO DEBORAH E. WASSEL Assistant District Attorneys of Counsel July 1, 2015 50