The People, Respondent,v.Andre Harrison, Appellant.

Brief

N.Y.March 29, 2016

Queen County Ind. No. 1160/08 To be argued by LISA NAPOLI (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANDRE HARRISON, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W.L. FAHEY LISA NAPOLI Attorneys for Defendant- Appellant 111 John Street, 9th Floor New York, N.Y. 10038 (212) 693-0085 ext. 202 August 20, 2015 INDEX TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT ONCE MR. HARRISON SECURED LEAVE TO APPEAL THE SUMMARY DENIAL OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, HIS PURSUIT OF THAT APPEAL WAS “IMPERATIVE” AND THE APPELLATE DIVISION ABUSED ITS DISCRETION BY DISMISSING IT . . . . . . . 1 A. Mr. Harrison’s Appeal To The Appellate Division Was, Irrespective Of The Method Of Its Initiation, His First And Only Appeal And, Thus, The “Imperative” Intermediate Appellate Review That This Court Has Found Is Beyond The Appellate Division’s Discretion To Dismiss . . . . . . . . 3 B. Mr. Harrison Is Available To Obey The Mandate Of The Appellate Division, All That Is Required For Him To Maintain His Appeal In That Court . . . . . . . . . . . . . . 8 C. Mr. Harrison’s Case Highlights The Unfairness Of Denying Him Appellate Division Review . . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 18 -i- TABLE OF AUTHORITIES CASES Halbert v. Michigan, 545 U.S. 605 (2005) . . . . . . . . . . . 5 Hernandez-Almanza v. United States Dep’t of Justice, 547 F.2d 100 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . 12 Martinez v. Ryan, 132 S. Ct. 1309 (2012) . . . . . . . 5, 13, 18 Matter of Lee, 17 I. & N. Dec. 275 (Comm. 1978) . . . . . . . 12 Matter of Tomas-Gostas, 2010 WL 1284458 (B.I.A. Mar. 16, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Padilla v. Kentucky, 559 U.S. 356 (2010) . . . . . . . . . . 16 People v. Del Rio, 14 N.Y.2d 165 (1964) . . . . . . . . . . . . 4 People v. Diaz, 7 N.Y.3d 831 (2006) . . . . . . . . . 2, 4, 8, People v. Genet, 59 N.Y. 80 (1874) . . . . . . . . . . . . . 10 People v. Haffiz, 19 N.Y.3d 883 (2012) . . . . . . . . . . . . 3 People v. Nesbitt, 20 N.Y.3d 1080 (2013) . . . . . . . . . . . 7 People v. Parmaklidis, 38 N.Y.2d 1005 (1976) . . . . . . . . . 4 People v. Peque, 22 N.Y.3d 168 (2013) . . . . . . . . . . . . 15 People v. Puluc-Sique, 106 Cal. Rptr. 3d 365 (Ct. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 & n.1 People v. Radcliffe, 298 A.D.2d 533 (2d Dep’t 2002) . . . . . 14 People v. Spotford, 85 N.Y.2d 593 (1995) . . . . . . . . . 10-11 People v. Ventura, 17 N.Y.3d 675 (2011) . . 1-2, 3-5, 8-10, 17-18 People v. White, 56 N.Y.2d 110 (1982) . . . . . . . . . . 7-8, 14 STATUTES AND CONSTITUTIONS County Law § 722 . . . . . . . . . . . . . . . . . . . . . . . 6 -ii- Immigration & Nationality Act § 212(a)(9)(A)(ii) . . . . 12 n.3 MISCELLANEOUS Immigration and Customs Enforcement, “Immigration Detention Overview and Recommendations” (Oct. 6, 2009) . . . . . . . . 13 N.Y.S. Div. of Crim. Just. Servs., “New York State Felony Processing Report: Indictment through Disposition January - December 2014” (June 2015) . . . . . . . . . . . . . . . . . 16 -iii- COURT OF APPEALS THE STATE OF NEW YORK ---------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANDRE HARRISON, Defendant-Appellant. ---------------------------------------- PRELIMINARY STATEMENT This brief is submitted in reply to Respondent’s Brief, which was served by mail on July 1, 2015. The Court granted appellant an extension of time to August 24, 2015 to reply. ARGUMENT ONCE MR. HARRISON SECURED LEAVE TO APPEAL THE SUMMARY DENIAL OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, HIS PURSUIT OF THAT APPEAL WAS “IMPERATIVE” AND THE APPELLATE DIVISION ABUSED ITS DISCRETION BY DISMISSING IT. Appellant Andre Harrison raised his ineffective assistance of counsel claim in a C.P.L. § 440.10 motion, the only vehicle for doing so under New York law. He sought and obtained leave to appeal from the summary denial of that motion, the only means of appellate review. Because he was effectively in the same position as the deported defendants in People v. Ventura, 17 N.Y.3d 675 (2011), the Appellate Division abused its discretion in dismissing Mr. Harrison’s appeal when he was deported, thereby denying him all appellate review of his claim that his conviction was fatally flawed. In response, the People argue, in reliance on People v. Diaz, 7 N.Y.3d 831 (2006), that the Appellate Division acted within its broad discretion to dismiss the permissive appeal of an involuntarily-deported defendant. They distinguish Ventura as applying only to involuntarily absent defendants who are appealing as of right and raising dismissal issues. This Court did not, however, limit Ventura’s applicability to defendants raising dismissal issues on direct appeal. Rather, it stressed that the lack of intermediate appellate review was the distinguishing factor between the Ventura defendants and the Diaz defendant, who had already had his day in appellate court. The Court also made clear in Ventura that the defendants’ obedience to the Appellate Division’s mandate did not bar their access to that first line of appellate review because they could appear though counsel. To empower the Appellate Division to dismiss the type of appeal at issue here, merely because the issue presented had to be raised in a 440 motion, would violate the essential spirit of Ventura by denying involuntarily deported defendants all appellate review of the validity of their convictions. -2- A. Mr. Harrison’s Appeal To The Appellate Division Was, Irrespective Of The Method Of Its Initiation, His First And Only Appeal And, Thus, The “Imperative” Intermediate Appellate Review That This Court Has Found Is Beyond The Appellate Division’s Discretion To Dismiss Mr. Harrison raised his ineffectiveness claim in a C.P.L. § 440.10 motion because that is the only means by which he could raise such a claim in New York State (Appellant’s Br. at 20-21). See, e.g., People v. Haffiz, 19 N.Y.3d 883, 885 (2012)(Padilla claim based on “hearsay matters and facts not found” in appellate record “should be raised” by 440 motion). Here, as is typical, Mr. Harrison filed a pro se motion, which a single trial-level judge summarily denied without a hearing, oral argument, or the assignment of counsel. Mr. Harrison’s first and only opportunity for appellate review of the summary denial of his claim was in the Appellate Division, and that court granted leave. Under Ventura, a first direct appeal cannot be dismissed because of a defendant’s involuntary deportation. The same result is required here. In Ventura, 17 N.Y.3d at 679-80, the Court acknowledged that it approved of the dismissal of voluntarily-absent defendants’ appeals because “courts should not aid in the deliberate evasion of justice through continued consideration of [such defendants’] appeals.” It recognized, however, that “this policy concern [was] not present” in Ventura since the defendants had been involuntarily removed from the United States. Id. at 680 Thus, “their extrication lacked the scornful or contemptuous traits that compel courts to dismiss -3- appeals filed by those who elude criminal proceedings”: “Rather, they and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation.” Id. (emphasis added). The Court’s “[m]ore significant[]” concern, was “the complete lack of intermediate appellate review,” which “materially distinguishe[d]” the Ventura appeals from those in Diaz, supra, People v. Del Rio, 14 N.Y.2d 165 (1964), and People v. Parmaklidis, 38 N.Y.2d 1005 (1976), in which the appeals dismissed were those pending before this Court and “the defendants had already received considered intermediate appellate review, in satisfaction of their statutory right.” Ventura, 17 N.Y.3d at 680 (emphasis added). It was in this context that the Court noted that it had the discretion to dismiss such appeals because it was “a court of permissive appellate jurisdiction,” whereas “the Appellate Divisions do not enjoy such unencumbered latitude.” Id. at 680-81. The Ventura court did not confine the significance of intermediate appellate review to the statutory entitlement to a direct appeal, as the People assert (e.g., Respondent’s Br. at 10-11, 42-43). Rather, the Court spoke broadly of [t]he invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York’s hierarchy of appellate review, mak[ing] access to intermediate appellate courts imperative. -4- Id. at 681 (emphasis added). Thus, contrary to the People’s reading of Ventura as limiting the Appellate Division’s discretionary authority to dismiss only appeals as of right (Respondent’s Br. at 6-11, 23-27, 35, 41-42), the Court’s reasoning rested primarily on the unavailability of a first round of appellate review by the intermediate appellate court. The “permissive” nature of the appeal is not a valid distinction (Respondent’s Br. at 9, 35-40) when it presents the sole opportunity for appellate review of a claim as to a criminal conviction’s constitutionality, particularly when an appellate judge has determined that that review is warranted and granted leave. See Martinez v. Ryan, 132 S. Ct. 1309, 1317-19 (2012)(when ineffectiveness claim was not raised in state post-conviction proceeding due to counsel’s ineffectiveness, federal courts will excuse the procedural default in order to provide review). The People’s argument regarding permissive appeals is contrary to Halbert v. Michigan, 545 U.S. 605, 619 (2005). In Halbert, the Supreme Court held that a defendant had the right to counsel in a discretionary appeal from his criminal conviction because it was the initial review of the conviction, regardless of whether that review was as-of-right or discretionary. Under Halbert, when an appeal provides the only opportunity to have a claim reviewed, that appeal should be treated no differently from mandatory review, thus severely undercutting the People’s position here. -5- The People’s characterization of the summary denial of Mr. Harrison’s motion as a “full merits review of his claim” and the equivalent of intermediate appellate review (Respondent’s Br. at 8, 11, 21, 22, 26-27, 38, 40, 43, 45-46, 49) cannot withstand scrutiny. First, a 440 motion is decided by a single judge, generally the one who presided over the trial, while an appellate panel is composed of several judges who have no preconceptions about the case. Second, because indigent defendants are not entitled to counsel on a 440 motion, see County Law § 722(4) (providing only that counsel be assigned in collateral proceeding if court orders hearing), the appeal is often –- as it was here -- the first time that the defendant has an attorney’s assistance with presenting his claim. This assistance is vitally important because a detained pro se defendant will often be incapable of making a persuasive presentation of even the most compelling issue. Mr. Harrison’s case aptly illustrates the problem. Mr. Harrison’s pro se motion was a set of poorly put-together papers by a detained first-time offender (A19-30, 48-55). The People and the lower court faulted him for failing to make certain assertions that he clearly did not understand he had to make, much less persuasively establish (A36, 44-45, 46, 58- 60). He was not provided with counsel, there was no hearing to develop the facts, and there was no oral argument. In short, there was no inquiry of any kind into the factual or legal underpinnings of his 440 claim. Just because the case -6- was not dismissed on procedural grounds and the lower court purportedly reached the “merits” does not mean its consideration of Mr. Harrison’s claim was full, thorough, or meaningful. In practice, New York has a two-tier system for ineffective assistance of counsel claims. Regardless of whether they have been ruled on by a trial judge, on-the- record claims can receive full appellate review on direct appeal, with counsel representing the defendant. But off-the record claims –- which are far more common (People v. Nesbitt, 20 N.Y.3d 1080, 1081-82 [2013][finding ineffectiveness on direct appl is the “exception”]) -– are generally pro se and receive no appellate review or assignment of counsel unless an Appellate Division judge finds such review appropriate. As a result, those unlucky defendants whose attorneys gave them erroneous or misleading advice during an attorney- client discussion will generally be consigned to litigating their ineffectiveness claims, if they are able to discern that they have them, without the benefit of counsel and without the right to appeal. When also denied review, the summary denial of a pro se defendant’s ineffective assistance of counsel claim simply cannot satisfy stringent New York law protecting the fundamental right to counsel. See People v. White, 56 N.Y.2d 110, 115 (1982)(New York "has long been a protector of an accused's right to be heard through counsel," remaining -7- "true to the spirit as well as the letter of our State Constitution's provision"). In sum, the already disparate treatment of on- and off- the-record ineffectiveness claims should not be further enlarged by allowing the Appellate Division to dismiss appeals like the one here, in which an Appellate Division judge certified that an issue was presented that merits Appellate Division review. B. Mr. Harrison Is Available To Obey The Mandate Of The Appellate Division, All That Is Required For Him To Maintain His Appeal In That Court The People repeatedly claim that, in order to maintain his appeal in the Appellate Division, Mr. Harrison must be able to participate in future proceedings that may or may not happen –- future proceedings that are completely speculative until the Appellate Division renders a decision and the case’s future path is clarified. See Respondent’s Br. at 4, 7, 22- 23, 24-27, 42, 43-44. But Ventura specifically recognizes that a defendant seeking to maintain his appeal in the Appellate Division is able to obey that court’s mandate through appellate counsel. In Ventura, 17 N.Y.3d at 682, the Court discussed the Appellate Divisions’ unique appellate review role and the importance of the right to appeal, then concluded its decision by stating that, “in our view, the perceived inability to obey the mandate of the court is not implicated here.” It went on to note that: -8- In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899, 106 Cal Rptr 3d 365, 369 [Ct App 2010]). Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of the defendants. Id. (emphasis added).1 Contrary to the People’s claim (Respondent’s Br. at 42), the “moreover” clause was not a prerequisite to relief, but merely recognition of the lack of any future problem for these particular defendants. The Ventura court’s observation that a defendant can obey the mandate of the court through counsel does not conflict with Diaz. Since that case involved a discretionary second review, it is not surprising that the Court of Appeals scrutinized the defendant’s ability to obey the mandate of the court more closely, resolving not to extend its resources in that way for the purpose of second review. But it is Ventura’s assessment of the role of the defendant’s ability to 1 The referenced Puluc-Sique decision stated: [T]he People argue that the appeal must be dismissed . . . because deportation has placed [the defendant] beyond the jurisdiction of the courts of this state . . . . While it is true that a defendant must be personally present during various stages of a criminal prosecution, he may appear through counsel on appeal, whether in custody or not. Puluc-Sique, 106 Cal. Rptr. 3d at 369 (emphasis added). -9- obey the mandate of the court through counsel that controls when the intermediate first appellate review is at stake, as it is here. Under Ventura, an involuntarily-deported defendant who has not forfeited his entitlement to appellate review need only be able to obey the mandate of the appellate court in which his case is pending. Mr. Harrison perfected his appeal through counsel, who continues to represent him, and was fully in compliance with that court’s mandate. The cases relied upon by the People that contain forceful language about the necessity for the defendant’s presence in the jurisdiction (Respondent’s Br. at 24-26) are not on point because they involve defendants who have voluntarily absented themselves from the jurisdiction in order to evade punishment, thus forfeiting appellate relief by their own misconduct. See, e.g., People v. Genet, 59 N.Y. 80, 82-83 (1874)(courts not required “to encourage escapes and facilitate the evasion of the justice of the State, by extending to escaped convicts the means of reviewing their convictions”). Those concerns are not implicated here: Mr. Harrison played no role in his absence and he has completed his sentence. Until the Appellate Division makes its decision, the future path of a case is unknown and speculative. What is certain, however, is that the defendant’s physical presence in the jurisdiction is not required. While a 440 litigant has the right to be present, he can waive that right. See, e.g., -10- People v. Spotford, 85 N.Y.2d 593 (1995)(defendant can waive right to be present at Ventimiglia hearing). If there is a remand for a 440 hearing, he could participate fully via video or Skype,2 both of which have been utilized to permit detained or deported individuals to give sworn testimony (Appellant’s Br. at 24-26). The People’s perceived bar to the credibility assessment of a witness’s testimony (Respondent’s Br. at 27- 28) is not an insurmountable obstacle; to the contrary, the ease with which courts have employed these options establishes their viability. And even if such participation were limited by practical barriers, a defendant should not be foreclosed from going forward with a hearing just because, through no fault of his own, he was not able to present his own testimony. For example, family members or his trial attorney may well be able to provide proof of claims that the defendant himself might ordinarily supply. A favorable outcome in the Appellate Division could also facilitate his return to participate in further proceedings. The People play down the possibility of re-admission or parole, even though they concede that both exist (Respondent’s Br. at 29-31). Re-admission is Citizenship and Immigration Services’ specific mechanism for deported lawful permanent residents like Mr. Harrison to seek a waiver of the 10-year 2 The Appellate Division spoke only of Mr. Harrison being within its jurisdiction, but made no mention, as the People claim, of concerns about Mr. Harrison participating in further proceedings from afar (Respondent’s Br. at 27-28). -11- bar on re-admission upon a showing of certain enumerated factors, such as moral character, basis for deportation, the length of time lived in the United States of deportation, and the applicant’s ties to this country.3 See http://www.uscis. gov/i-212 (last viewed Aug. 5, 2015); Matter of Lee, 17 I. & N. Dec. 275 (Comm. 1978). The Attorney General has, in fact, used the authority to temporarily parole someone into the United States for the purpose of participation in further proceedings related to a criminal case. See Matter of Tomas- Gostas, 2010 WL 1284458 (B.I.A. Mar. 16, 2010); Hernandez- Almanza v. United States Dep’t of Justice, 547 F.2d 100, 101- 02 (9th Cir. 1976). Thus, re-admission and parole are available options for re-entry. C. Mr. Harrison’s Case Highlights The Unfairness Of Denying Him Appellate Division Review The People argue at length that Mr. Harrison has not been treated unfairly for several reasons: his claim is not “so exceptional that further review was mandated,” he never maintained his innocence or proffered a defense to the 3 The People misapprehend the significance of the statistic cited by Mr. Harrison (A175) regarding the number of non-citizens who overcome Immigration & Nationality Act § 212(a)(9)(A)(ii) ineligibility (Respondent’s Br. at 30 n.8). Section 212(a)(9)(A)(ii) governs inadmissibility, which can be based on a broad variety of reasons. While the Government does not have specific statistics on the waiver applications of deportees convicted of firearms offenses, the Government does maintain statistics on the grant of the waiver in broad criminal conviction categories. See http://travel.state.gov/ content/dam/visas/Statistics/AnnualReports/FY2014Annual Report/FY14AnnualReport TableXX.pdf (last viewed Aug. 5, 2015). The import of these statistics is that re-admission is granted with some frequency. -12- charges, his claim was belated, and his assertion that he would not have pled guilty if he had been fully informed did not ring true (Respondent’s Br. at 12, 45-49). These arguments serve only to highlight the unfairness of denying Mr. Harrison Appellate Division review. Mr. Harrison was an indigent first-time offender in ICE custody with, as his pro se papers amply display, a limited education (Appellant’s Br. at 6-7, 9; A19-30, 48-55). As difficult as litigation is for an incarcerated defendant, it is far worse for an ICE detainee whose access to the outside world or a law library is limited. ICE’s own internal review of its facilities acknowledged that family and non-lawyer contact is limited and access to law libraries inadequate, and that both areas required improvement. See Doctor Dora Schriro, U.S. Dep’t of Homeland Security, Immigration and Customs Enforcement, “Immigration Detention Overview and Recommendations,” at 23-24 (Oct. 6, 2009), available at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice- detention-rpt.pdf (last viewed July 31, 2015). Moreover, like most indigent defendants, Mr. Harrison had to raise his claim without the benefit of counsel. See Martinez, 132 S. Ct. at 1317 (recognizing the difficulties of litigating ineffectiveness claim in collateral proceeding for imprisoned pro se defendant). Despite these virtually insurmountable circumstances, Mr. Harrison sought to vindicate a fundamental right of which New -13- York State has traditionally been highly protective. See White, 56 N.Y.2d at 115. That the People fault him for purported factual, legal, and procedural deficiencies proves not that he has no viable claim, but only that his right to appeal to the Appellate Division, with its accompanying access to counsel, is critically important. The People repeatedly criticize Mr. Harrison’s lack of factual investigation and reliance on his own self-serving allegations (Respondent’s Br. at 45-48), arguing, inter alia, that he could have avoided dismissal of his appeal in the Appellate Division if “his claims had greater merit” (Respondent’s Br. at 48). But for the typical indigent defendant who is locked away and cut off from resources that might otherwise assist him, conducting a factual investigation and presenting even the most meritorious claim pro se is virtually impossible. Obtaining an affirmation from the attorney Mr. Harrison is faulting, as the People implicitly suggest he should have done (Respondent’s Br. at 45-46), was hardly feasible. See People v. Radcliffe, 298 A.D.2d 533, 534 (2d Dep’t 2002)(because “defendant's application is adverse and hostile to his trial attorney,” requiring him “to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary”). Indeed, since Mr. Harrison’s attorney had been disbarred, even tracking him down might well have been impossible from ICE detention. -14- While Mr. Harrison helplessly sat in detention, the People delayed responding to his motion, which had a July 19, 2010 return date, until February 11, 2011 (A47). Then, despite having many months to formulate their response, the People relied on factual allegations for which they provided no evidentiary support (A31-33).4 Mr. Harrison had no way of challenging either these unsupported allegations or the People’s self-serving conclusion that they had “strong evidence” against him (A42; Respondent’s Br. at 44 n.13, 47). Mr. Harrison was also limited in his ability to identify the legal significance of the facts in his case, research his claim, and properly analyze the issue. Ineffectiveness claims are complex and the legal arguments here were beyond the capacity of most pro se defendants. For example, the People and the lower court conflated the court’s Fifth Amendment duty to give pleading defendants general advice regarding possible immigration consequences with counsel’s Sixth Amendment duty to provide tailored advice to his client (A37, 60). See People v. Peque, 22 N.Y.3d 168, 190-91 (2013). If the People could not understand this distinction, a first-time offender with a limited education like Mr. Harrison certainly could not be expected to do so. 4 Some of the People’s factual claims appear to come from the felony complaint (A15-16), but not all of them. The People neither cited the complaint nor attached it to their opposition papers. To date, it remains impossible to verify the legitimacy of their claims. -15- Contrary to another of the People’s assertions, Mr. Harrison did not delay in raising his claim (Respondent’s Br. at 2). He filed his motion only a little over two months after Padilla v. Kentucky, 559 U.S. 356 (2010), was decided (A19, 30). Nor did he delay filing his appellate brief for eight months (Respondent’s Br. at 3). Counsel was not assigned until three months after leave was granted; the appellate brief was filed five months later, much of that time attributable to obtaining the necessary appellate record (A64, 67). It was primarily the People who delayed the appellate process, filing their brief more than six months after Mr. Harrison’s brief was filed (A94). The numerous barriers to meaningful review of a pro se incarcerated defendant’s ineffectiveness claim creates the unacceptable risk that a constitutionally-defective conviction will be allowed to stand if his appeal from a summary 440 denial is dismissed. Pleas are by far the most common form of disposition of a criminal case in this State. See N.Y.S. Div. of Crim. Just. Servs., “New York State Felony Processing Report: Indictment through Disposition January - December 2014,” at Table 8 (June 2015)(of 44,132 felony actions in 2014, 34,950 were resolved by plea), available at http://www.criminaljustice.ny.gov/crimnet/ojsa/2014-nys- felony-processing-report.pdf (last view-ed Aug. 5, 2015). The viability of the plea system depends on the reliability of the -16- pleas entered: the system is untenable if pleas contain hidden, unbearable costs, such as deportation. Allowing an appeal for which an Appellate Division judge has granted leave, and letting the defendant pursue that appeal with counsel to assist him, promotes fairness and avoids the result of elevating economy over the fundamental right to appellate review. A means of reviewing whether counsel’s erroneous advice or lack of advice has misled a defendant into entering a guilty plea must be maintained in order to ensure that invalid convictions do not result in the improper deprivation of liberty or, worse, banishment from one’s home, family, and friends, as is the case for Mr. Harrison. Reinstatement of the appeal at some future date is not meaningful relief for an involuntarily-deported defendant like Mr. Harrison. Contrary to the People’s contention (Respondent’s Br. at 31), unlike an absconding defendants who may return to the jurisdiction at will, a defendant who has been involuntarily removed is foreclosed from re-activating his appeal when the conviction under review is the reason he is not present in the jurisdiction. Yet involuntarily- deported defendants forced to prosecute tricky ineffective assistance of counsel claims without the benefit of counsel are precisely those defendants whom this Court said “have a greater need to avail themselves of the appellate process in -17- light of the tremendous ramifications of deportation.” Ventura, 17 N.Y.3d at 680. If the People’s position prevails, even the most compelling ineffectiveness claims of deported indigent defendants will be essentially insulated from all review, contravening the value placed on both the right to the effective assistance of counsel, “a bedrock principle in our justice system,” see Martinez, 132 S. Ct. at 1317, and the right to at least one level of appellate review of the fundamental validity of a defendant’s conviction. Thus, a defendant who has secured intermediate appellate review of an ineffectiveness claim attacking a criminal conviction -– whether it be permissive or as-of-right -- should be permitted to proceed with that appeal. CONCLUSION FOR THE REASONS STATED ABOVE AND IN THE PRINCIPAL BRIEF, THE APPELLATE DIVISION’S ORDER DISMISSING APPELLANT’S APPEAL SHOULD BE REVERSED AND THE CASE REMANDED FOR CONSIDERATION OF HIS APPEAL ON THE MERITS. Respectfully submitted, LYNN W.L. FAHEY Attorney for Defendant-Appellant _________________________ By: LISA NAPOLI Of Counsel Dated: August 20, 2015 New York, New York -18-