The People, Respondent,v.Andre Harrison, Appellant.BriefN.Y.March 29, 2016 To be argued by ALLEGRA GLASHAUSSER (15 minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against – ANDRE HARRISON, Defendant- Appellant. BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY ALLEGRA GLASHAUSSER Attorney for Defendant-Appellant 111 John St, 9th Floor New York, N.Y. 10038 (212) 693-0085 March 27, 2015 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................... ii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTION PRESENTED ................................................................................................ 2 SUMMARY OF ARGUMENT ........................................................................................... 2 STATEMENT OF FACTS .................................................................................................. 5 Introduction ................................................................................................................. 5 Appellant’s Background ............................................................................................. 6 The Underlying Offense and Appellant’s Guilty Plea ............................................ 7 The 440 Motion .......................................................................................................... 9 Appeal ......................................................................................................................... 11 iii ARGUMENT ....................................................................................................................... 14 APPELLANT, A LAWFUL PERMANENT RESIDENT WHO WAS INVOLUNTARILY DEPORTED SOLELY BECAUSE OF THE PLEA AT ISSUE, WAS ENTITLED TO APPELLATE REVIEW OF HIS CLAIM THAT HIS ATTORNEY WAS INEFFECTIVE FOR MISADVISING HIM THAT THE PLEA WOULD NOT RESULT IN DEPORTATION ............................................................... 14 A. Individuals Subjected to Involuntary Deportation Retain Their Fundamental Right to Pursue Direct Appeals of Their Convictions in New York ....................................................................................................... 15 B. Appellant Was Entitled to At Least One Opportunity for Appellate Review of the Ineffective Assistance of Counsel Claim That Went to the Heart of His Conviction’s Validity ............................................................ 16 C. Ventura’s Holding Was Not Limited to Dismissal Issues and Appellant Was Not “Unavailable”................................................................... 23 D. Fundamental Fairness Dictates Allowing Appellant His Day in Appellate Court ............................................................................................. 27 CONCLUSION ................................................................................................................... 32 iv TABLE OF AUTHORITIES CASES Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007) .......................................................... 26 Boria v. Keane, 99 F.3d 492 (2d Cir. 1996)................................................................ 18 Brady v. United States, 397 U.S. 742 (1970) .............................................................. 17 Bridges v. Wixon, 326 U.S. 135 (1945) ...................................................................... 27 Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) .................................... 24 Comm. v. Dias, 2015 WL 711589 (Mass. App. Ct. 2015) ....................................... 22 Delgadillo v. Carmichael, 332 U.S. 388 (1947) .................................................... 27, 31 Hill v. Lockhart, 474 U.S. 52 (1985) .............................................................. 3, 11, 18 Johnson v. Ashcroft, 378 F.3d 164 (2d Cir. 2004) ..................................................... 24 Jones v. Barnes, 463 U.S. 745 (1983) ......................................................................... 17 Kercheval v. United States, 274 U.S. 220 (1927) ......................................................... 17 Lafler v. Cooper, 132 S. Ct. 1376 (2012) .................................................................... 18 Martinez v. Ryan, 132 S. Ct. 1309 (2012) ..................................................... 18, 20, 21 Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979) ............................................. 26 Matter of Hancock, 55 A.D.3d 216 (2d Dep’t 2008) ................................................. 8 Missouri v. Frye, 132 S. Ct. 1399 (2012) ............................................................ 17, 18 North Carolina v. Alford, 400 U.S. 25 (1970) ........................................................... 18 Padilla v. Kentucky, 559 U.S. 356 (2010) ............................................. 3, 9, 19, 28, 29 People v. Andrews, 23 N.Y.3d 605 (2014) ................................................................. 22 People v. Badia, 106 A.D.3d 514 (1st Dep’t 2013) ..................................... 12, 14, 23 v People v. Baldi, 54 N.Y.2d 137 (1981) ...................................................................... 28 People v. Baret, 23 N.Y.3d 777 (2014) ....................................................................... 20 People v. Boodhoo, 191 A.D.2d 448 (2d Dep’t 1993) ............................................... 11 People v. Carty, 96 A.D.3d 1093 (3d Dep’t 2012) ...................................... 12, 14, 23 People v. Del Rio, 14 N.Y.2d 165 (1964) ........................................................... 12, 22 People v. Diaz, 7 N.Y.3d 831 (2006) .................................................12, 13, 15, 21, 22 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ............................................................ 17 People v. Ford, 86 N.Y.2d 397 (1995) .................................................................... 5, 11 People v. Francabandera, 33 N.Y.2d 429 (1974) ......................................................... 18 People v. Gasperd, 939 N.Y.S.2d 742 (Sup. Ct., Kings County 2011) ................... 25 People v. Grubstein, 24 N.Y.3d 500 (2014) ................................................................. 20 People v. Guzman, 962 N.E.2d 1182 (Il. App. 3d 2011) .......................................... 22 People v. Haffiz, 19 N.Y.3d 883 (2012) ..................................................................... 20 People v. Hernandez, 22 N.Y.3d 972 (2013) ............................................................... 29 People v. McDonald, 1 N.Y.3d 109 (2003) ............................................ 3, 9, 18, 27, 28 People v. Montgomery, 24 N.Y.2d 130 (1969) ............................................................. 15 People v. Nixon, 21 N.Y.2d 338 (1967) ..................................................................... 17 People v. Parmaklidis, 38 N.Y.2d 1005 (1976) ........................................................... 22 People v. Peque, 22 N.Y.3d 168 (2013) ................................................ 3, 19, 20, 27, 29 People v. Roberts, 964 N.Y.S.2d 62 (Sup. Ct., N.Y. County 2012) .......................... 25 People v. Scott, 113 A.D.3d 491 (1st Dep’t 2014) .................................................... 23 People v. Traveras, 10 N.Y.3d 227 (2008) .................................................................. 16 vi People v. Terefenko, 18 N.E.3d 550 (Il. App. 3d 2014) ............................................. 24 People v. Ventura, 17 N.Y.3d 675 (2011) ................ 3, 12, 13, 14, 15, 16, 21, 22, 23 People v. Wrotten, 14 N.Y.3d 33 (2009) ..................................................................... 25 Popoca-Garcia v. State, 334 P.3d 824 (Idaho Ct. App. 2014) .................................. 22 State v. Cabanillas, 2012 WL 2783182 (Ariz. Ct. App. 2012) ................................ 22 State v. Garricks, 2013 WL 1830813 (N.J. Super. Ct. App. Div. 2013) ............... 22 St. Juste v. Comm’r of Correction, 155 Conn. App. 164 (Conn. App. Ct. 2015) ..... 22 Strickland v. Washington, 466 U.S. 668 (1984) ..................................................... 9, 28 Trevino v. Thaler, 133 S. Ct. 1911 (2013) ........................................................... 18, 20 United States v. Filippi, 918 F.2d 244 (1st Cir. 1990) .............................................. 26 United States v. Flores, 2013 WL 5670924 (S.D. Cal. 2013) ................................... 22 United States v. LaBonte, 70 F.3d 1396 (1st Cir. 1995) ........................................... 11 Vartelas v. Holder, 132 S. Ct. 1479 (2012) ............................................................... 19 STATUTES 8 U.S.C. § 1182........................................................................................................... 26 8 U.S.C § 1227 ........................................................................................................... 28 18 U.S.C § 921 ........................................................................................................... 28 C.P.L. § 440.30 ........................................................................................................... 24 C.P.L. § 470.60 (1) .................................................................................... 2, 12, 13, 16 P.L. § 265.03 (3) ........................................................................................................ 28 1 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANDRE HARRISON, Defendant-Appellant. -------------------------------------------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Jonathan Lippman, Chief Judge of the Court of Appeals, granted December 29, 2014, appellant Andre Harrison appeals from an order of the Appellate Division, Second Department, entered March 26, 2014, dismissing his appeal from a decision and order of the Supreme Court, Queens County, rendered March 16, 2011, denying his C.P.L. § 440.10 motion to set aside a judgment convicting him, on a guilty plea, of attempted second-degree criminal possession of a weapon and sentencing him to a two-year term of imprisonment, followed by a two-year term of post-release supervision (Raciti, J., at plea and sentence; Chin-Brandt, J., on the motion). On February 12, 2015, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on the appeal. No stay has been sought. Appellant completed his sentence and has been deported. 2 This Court has jurisdiction pursuant to C.P.L. §§ 450.90 (1) and 470.60 (3) to entertain the appeal and review the issue raised. The issue was preserved by appellate counsel’s opposition to the People’s motion to dismiss appellant’s appeal (A. 173- 181).1 QUESTION PRESENTED Whether appellant, a lawful permanent resident who was involuntarily deported solely because of the plea at issue, was entitled to appellate review of his claim that his attorney was ineffective for misadvising him that the plea would not result in deportation? SUMMARY OF ARGUMENT Appellant Andre Harrison, a lawful permanent resident of the United States for seven years with an extended American-citizen family and no prior convictions, was deported solely because of the conviction at issue in this case. He had filed a C.P.L. § 440.10 motion, arguing that counsel was ineffective for misadvising him that his plea to attempted second-degree weapon possession, an aggravated felony, would not result in his deportation. His appeal from the summary denial of that motion was pending before the Appellate Division when he was deported. That appeal was Mr. Harrison’s first and only opportunity for intermediate appellate review of the right to counsel issue that went to the heart of the validity of his conviction. Nonetheless, the Appellate Division dismissed his appeal without 1 Citations preceded by “A” refer to the pages of the appendix. 3 deciding the merits of his claim because of his involuntary deportation – the very result Mr. Harrison was attempting to avoid by availing himself of the New York appellate court system. It is settled that defendants in New York do not lose their right to a direct appeal of their convictions to an intermediate appellate court when they are involuntarily deported. People v. Ventura, 17 N.Y.3d 675 (2011). This is because appellate review is a crucial component of New York’s criminal justice system, essential to ensuring that convictions are fairly and constitutionally obtained. Id. Contrary to the Appellate Division’s conclusion, the logic and fundamental fairness concerns that underlie Ventura apply equally to appeals from 440 denials raising ineffective assistance of counsel claims. A claim that counsel was ineffective for providing inaccurate advice before the defendant accepted a guilty plea impacts the essential validity of that plea. When a defendant pleads guilty to a crime based on counsel’s erroneous advice, the plea is less than knowing, intelligent, and voluntary, and the conviction is not fairly or constitutionally obtained. See Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). For a noncitizen defendant, accurate advice about the immigration consequences of the plea is particularly crucial. See Padilla v. Kentucky, 559 U.S. 356 (2010); People v. McDonald, 1 N.Y.3d 109 (2003). Otherwise, a defendant may be subjected to the “tremendous” consequence of deportation from entering a plea with consequences he did not understand. See People v. Peque, 22 N.Y.3d 168, 175-76 (2013). 4 Most often, in New York, a defendant must raise an ineffective assistance of counsel claim related to the validity of his guilty plea by C.P.L. § 440.10 motion because such a claim necessarily relies on off-the-record information. Consequently, an appeal from a denial of a 440 motion may be, as a practical matter, the only opportunity a defendant has for an appellate court to hear an ineffective assistance claim. Because adequate counsel is a critical foundation of the constitutional validity of a guilty plea, the logic of Ventura should apply to ineffective assistance of counsel claims on collateral appeal. Also, contrary to the Appellate Division’s view, although the defendants in Ventura raised only dismissal issues, this Court’s holding was not so limited, but broadly protected the right of deported defendants to intermediate appellate court review. Mr. Harrison is, moreover, available to participate in any subsequent court proceedings. If his appeal is heard on the merits and his conviction is vacated, he will be able to petition to return to the United States. If the court orders a hearing, Mr. Harrison, who has remained in contact with appellate counsel throughout his appeal, would have numerous ways to comply with the court’s mandate. To deny a defendant like Mr. Harrison an intermediate court appeal from his 440 denial because he was deported as a result of the conviction would create an indefensible Catch-22. He may well be prevented from returning to the United States unless his plea is vacated; but the Appellate Division will decide whether his plea 5 should be vacated only if he first manages to return to the United States. This result is fundamentally unfair. Mr. Harrison vigorously fought for a chance to remain in the United States. For almost three years, significantly longer than his incarceration for his underlying conviction, he chose to remain in ICE detention for the chance to have his appeal heard. Yet, despite that sacrifice, no appellate court has reviewed his claim that his counsel was ineffective. The Appellate Division’s abuse of its discretion in dismissing Mr. Harrison’s appeal should be corrected and his case remanded for that court to rule on the merits of his claim. STATEMENT OF FACTS Introduction Appellant Andre Harrison moved to the United States from Jamaica when he was 15. His entire family – his parents, two siblings, grandmother, and young daughter – are all United States citizens living in this country. In 2008, Mr. Harrison was a 22-year-old lawful permanent resident, living with his mother in Queens and working full-time, when he was arrested for the first time in his life. Mr. Harrison pled guilty to attempted second-degree criminal possession of a weapon after his attorney, who has since been disbarred, told him that the plea would not make him eligible for deportation. Acting pro se, Mr. Harrison subsequently moved to vacate his conviction on the ground that his attorney had been ineffective and 6 explaining that, had he known the plea would make him deportable, he would not have accepted it. The lower court summarily denied the motion, and Hon. Reinaldo E. Rivera granted leave to appeal. While waiting for his appeal to be heard, Mr. Harrison was deported to Jamaica. Although he kept in contact with appellate counsel, the Appellate Division dismissed his appeal without reaching the merits, concluding that Ventura did not apply because it was not a direct appeal raising a dismissal issue and Mr. Harrison was “unavailable” because of his deportation. Appellant’s Background Appellant Andre Harrison, who was born in Jamaica in 1986, moved to the United States when he was 15 years old and became a lawful permanent resident of this country (PSR 1; A. 30).2 He lived in Queens with his mother, an intake receptionist a local hospital, and attended high school in Springfield Gardens, Queens and Long Beach, New York (PSR 3). His father was self-employed, running a pizza store he owned in Brooklyn, and his older sister was a student in Florida, where she was also employed (PSR 3). In addition to his parents and sister, his grandmother, 2 All citations preceded by “PSR” refer to the pre-sentence report, which has been provided to this Court under separate cover. 7 brother, and young daughter also lived in the United States and were American citizens (PSR 3; A. 30). 3 In 2008, Mr. Harrison, who was 22 years old, had no prior arrests and was employed full-time as a filing clerk at a corporation in Manhattan, where he had worked for nine months, earning $10.00 an hour (PSR 1-3; A. 18). He lost his job because of this arrest (PSR 3). The Underlying Offense and Appellant’s Guilty Plea In April of 2008, Mr. Harrison was arrested based on the allegation that he ran away as an officer tried to ticket him for riding his bicycle on the sidewalk and discarded a loaded and operable firearm that had been defaced (A. 15-17, 31-32, 60). He was charged with second-degree criminal possession of a weapon, resisting arrest, and two violations (A. 32, 60). He explained to the Department of Probation that he found a gun and ammunition in the park and picked it up so children would not find it (PSR 2). As he rode home on his bike, police approached him; he got nervous and threw the gun away (PSR 2). On May 8, 2008, Mr. Harrison waived indictment and, pursuant to a superior court information, pled guilty to attempted second-degree weapon possession (A. 8- 11, 13-14). The court asked if he had attempted to “knowingly possess a loaded 3 Although the pre-sentence report stated Mr. Harrison had no children, his affidavit affirmed that he has a daughter who was born in the United States (A. 30). 8 firearm,” “that is, possess a firearm not in your home or place of business” (A. 9). Mr. Harrison responded, “Yes, sir” (A. 9). The court asked his lawyer, Frank Hancock, if Mr. Harrison was a citizen, and counsel replied that he was not (A. 10). The court told Mr. Harrison, “you should be aware that if this plea has a negative effect upon your immigration status, you would not be allowed to withdraw your plea; do you understand that?” (A. 10). He replied, “Yes, sir” (A. 10). Mr. Harrison answered affirmatively when the court asked whether he understood he was giving up his rights to a jury trial, to present evidence, and to cross-examine the People’s witnesses by pleading guilty (A. 9). He also said “yes” when the court asked if he was “aware that [he] signed [a] waiver of [his] right to appeal” (A. 9-10). The waiver stated that his plea may result in [ ] deportation, exclusion from admission to the U.S., or denial of naturalization, and I wish to enter into the plea agreement notwithstanding any immigration or deportation consequences. I understand that my plea and sentence will stand as valid notwithstanding any immigration or deportation consequences (A. 12). The court did not ask Mr. Harrison if he had read the waiver before signing it or whether counsel had discussed the waiver with him. It did not tell Mr. Harrison that the plea would result in his deportation. And it did not ask counsel what immigration advice he had provided to Mr. Harrison. Mr. Harrison’s counsel at his plea has since been disbarred (A. 37, 53). See also Matter of Hancock, 55 A.D.3d 216 (2d Dep’t 2008); Debra Cassens Weiss, “Lawyer 9 Disbarred for Helping Ex-Con Colleague Practice Law,” ABA JOURNAL, Sept. 23, 2008, available at http://www.abajournal.com (last viewed Mar. 10, 2015). On June 8, 2008, Mr. Harrison was sentenced to a two-year term of imprisonment followed by two years of post-release supervision (A. 57). He finished his prison term on December 24, 2009, and was taken into ICE custody. See DOCCS Inmate Lookup, DIN 08-R-1976, http://nysdoccslookup.doccs.ny.gov. After being detained for almost three years in an Alabama detention facility, he was deported on November 30, 2012, because of the instant conviction (A. 188-89). The 440 Motion By a pro se motion filed July 20, 2010, Mr. Harrison moved to vacate his conviction pursuant to C.P.L. § 440.10, arguing that his attorney misadvised him that his plea to attempted second-degree criminal possession of a weapon would not result in his deportation (A. 21-30). He cited, inter alia, Padilla v. Kentucky, 559 U.S. 356 (2010); Strickland v. Washington, 466 U.S. 668 (1984); and People v. McDonald, 1 N.Y.3d 109 (2003) (A. 21-30). Specifically, Mr. Harrison said that his attorney had advised him “not [ ] to worry about his immigration status as a result of the plea,” because “he had been in the country so long, 8 years at time of sentencing, and because he was in [s]chool at the time” (A. 22). Mr. Harrison decided to accept the plea “in reliance” on this advice (A. 22). 10 Mr. Harrison stated that, if he had known his plea would mandate his deportation, he would have insisted on going to trial and “risk[ed] spending more days in jail” because deportation was “irreversible and life[-]altering” and everything he “know[ ]s and [has] come to love” is in the United States (A. 22, 28, 30). He explained that his attorney advised him that the evidence against him “was not that great,” and that a trial would afford him advantages, including the presumption of innocence, a jury, and an opportunity to present mitigating evidence (A. 22, 27). The People opposed the motion, asserting that Mr. Harrison had presented inadequate evidence that counsel misadvised him of the immigration consequences of his plea or that any erroneous advice was prejudicial (A. 35-45). Specifically, the claim that he was misadvised was “incredible” because it was not corroborated, and it was unlikely that his counsel would have contradicted the “explicit language” of the waiver Mr. Harrison signed (A. 36-37). According to the People, it would not have been “rational” for him to reject the plea because it was “extremely favorable in light of the high probability of [ ] conviction after a trial” and there was “no chance” the People would have offered a plea to a non-felony offense (A. 42, 45). In reply, Mr. Harrison said that his plea was not favorable because deportation was the “equiv[a]lent of [e]xile” (A. 48). He added that the court’s “last minute” warning about immigration consequences did not “replace competent tailored advice” from his attorney and that his attorney had advised him to say “yes” to all the court’s questions (A. 53). 11 The trial court found Mr. Harrison’s allegations “insufficient to show that he would have exercised his right to trial” because they were “[s]elf-serving” and he did not claim he was innocent, explain a defense, or offer facts that “raised the possibility of an acquittal” (A. 58-59). It concluded that any erroneous advice by defense counsel was not prejudicial because Mr. Harrison would not have gone to trial rather than accept the “advantageous” deal (A. 60-61). It cited People v. Ford, 86 N.Y.2d 397 (1995); Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. LaBonte, 70 F.3d 1396 (1st Cir. 1995); and People v. Boodhoo, 191 A.D.2d 448, 449 (2d Dep’t 1993) (A. 58-61).4 Hon. Reinaldo E. Rivera granted Mr. Harrison leave to appeal on July 8, 2011, and the Appellate Division assigned him counsel. The Appeal On appeal, Mr. Harrison argued that he was deprived of his federal and state constitutional rights to the effective assistance of counsel by his attorney’s misadvice to him about the immigration consequences of his guilty plea (A. 64-93). The People argued that Mr. Harrison’s “veteran” attorney would not have given him misadvice and that, in any event, counsel’s remarks to Mr. Harrison were only an “opinion” (A. 121-22, 145-46). The People further argued that Mr. Harrison had not shown he was 4 Although the court received Mr. Harrison’s reply after issuing the decision, it considered the reply and issued an amended decision on June 20, 2011, that “adhere[d] to the original decision” (A. 5). 12 prejudiced by counsel’s misadvice because the evidence against him was strong (A. 124-25, 127, 130). On October 21, 2013, the Appellate Division heard argument on Mr. Harrison’s appeal (A. 2). That same day, the People submitted papers moving to dismiss the appeal, arguing that, because Mr. Harrison had been deported, he was “outside the court’s control” and could not “be present for any hearing on his motion” if his appeal were successful (A. 161-72). They cited, inter alia, People v. Diaz, 7 N.Y.3d 831 (2006), and People v. Del Rio, 14 N.Y. 2d 165 (1964) (Id.). The People argued that deportation was a “defect or irregularity” permitting dismissal of the appeal under C.P.L. § 470.60 (1), and that People v. Ventura, 17 N.Y.3d 675 (2011), did not apply because that case involved a direct appeal raising dismissal issues (Id.). On November 1, 2013, appellate counsel opposed the motion to dismiss, in a post-argument submission, arguing that Mr. Harrison was not “unavailable” because there were numerous ways he could continue to participate in his case if he were successful on appeal and noting that both the First and Third Departments had held that 440 appeals may proceed despite the defendants’ deportation (A. 173-81; citing People v. Badia, 106 A.D.3d 514 [1st Dep’t 2013]; People v. Carty, 96 A.D.3d 1093, 1093 n. 1 [3d Dep’t 2012]). Counsel explained that Mr. Harrison had remained actively involved in his case, communicating with counsel via telephone and email since his deportation (A. 175). Counsel also noted that Mr. Harrison had been deported involuntarily after numerous delays in his appeal that were beyond his control, 13 including a six-month wait for the People’s brief and a more than one-year wait for oral argument to be scheduled (A. 174). On March 26, 2014, the Appellate Division granted the People’s motion to dismiss the appeal, citing People v. Diaz, 7 N.Y.3d 831, and C.P.L. § 470. 60 (1) (A. 2- 4). The court distinguished Ventura, 17 N.Y.3d 675, as involving direct appeals and raising only dismissal issues, so the “perceived inability to obey the mandate of the court was not implicated” (A. 2-4). In contrast, Mr. Harrison was appealing “by permission” and, “if the order were to be reversed, [his] motion to vacate his conviction granted, and his plea of guilty vacated, [his] continued participation in the proceedings would be required” (Id.). The court stated that the appeal would be reinstated only if Mr. Harrison returned to the court’s jurisdiction (Id.). 5 Chief Judge Jonathan Lippman granted Mr. Harrison leave to appeal to this Court. 5 Mr. Harrison’s reargument motion was also denied (A. 5, 182-216). 14 ARGUMENT APPELLANT, A LAWFUL PERMANENT RESIDENT WHO WAS INVOLUNTARILY DEPORTED SOLELY BECAUSE OF THE PLEA AT ISSUE, WAS ENTITLED TO APPELLATE REVIEW OF HIS CLAIM THAT HIS ATTORNEY WAS INEFFECTIVE FOR MISADVISING HIM THAT THE PLEA WOULD NOT RESULT IN DEPORTATION. Appellant Andre Harrison was deported because of the conviction at issue in this case while he was waiting for appellate review of his claim that his attorney’s affirmative misadvice that his plea would not cause his deportation made that plea less than knowing, intelligent, and voluntary. This appeal, Mr. Harrison’s first, represented his only opportunity for appellate review of a constitutional claim that went to the heart of his conviction’s validity. Instead of reaching the merits, however, the Appellate Division dismissed Mr. Harrison’s appeal, depriving him of any appellate review of his right to counsel claim. The Appellate Division’s decision was contrary to the logic and the concerns of fundamental fairness underlying this Court’s ruling in People v. Ventura, 17 N.Y.3d 675, 681 (2011), that a defendant’s involuntary deportation does not justify depriving him of the opportunity to challenge the essential validity of his conviction before an intermediate appellate court. It was also contrary to decisions of the First and Third Departments, which have both applied Ventura to reach the merits of 440 appeals by deported defendants. People v. Badia, 106 A.D.3d 514 (1st Dep’t 2013); People v. Carty, 96 A.D.3d 1093, 1093 n. 1 (3d Dep’t 2012). 15 A. Individuals Subjected to Involuntary Deportation Retain Their Fundamental Right to Pursue Direct Appeals of Their Convictions in New York In People v. Ventura, this Court held that it is a matter of “fundamental fairness” that all “criminal defendants [ ] be permitted to avail themselves of intermediate appellate courts.” 17 N.Y.3d at 681-82 (citation omitted); see People v. Montgomery, 24 N.Y.2d 130, 131, 132 (1969) (“every defendant” has a “fundamental” and “absolute” right to appellate review). Access to these intermediate appellate courts is “imperative.” Ventura, 17 N.Y.3d at 680-81. The Appellate Division, therefore, may not dismiss a direct appeal because the defendant was involuntarily deported. Id. The Court drew a clear distinction between defendants who were subjected to involuntary deportation and those who actively evaded the court’s jurisdiction. Ventura, 17 N.Y.3d at 679-80. Unlike fugitive defendants, involuntarily deported defendants have done nothing to flout the court’s authority or otherwise “disentitle” themselves to appellate review. Id. at 679-80; see also People v. Diaz, 7 N.Y.3d 831, 834 (2006) (Smith, J., dissenting) (“it [is] inappropriate to presume with no proof that a litigant, simply because he is a deportee, is contemptuous of or indifferent to the Court’s processes”). Indeed, involuntarily deported defendants have a “greater need to avail themselves of the appellate process” because of the “tremendous ramifications of deportation.” Ventura, 17 N.Y.3d at 680. Thus, the Court rejected the application of the “fugitive disentitlement doctrine” to involuntary deportation. Id. at 680 n. * (“so-called fugitive disentitlement doctrine” not “implicate[d]”). 16 Similarly, this Court held that the Appellate Division had no statutory authority to dismiss direct appeals based on involuntary deportation under C.P.L. § 470.60 (1). Ventura, 17 N.Y.3d at 681. By statute, appellate courts may dismiss appeals if they fall into specific categories: “mootness,” “lack of jurisdiction,” “failure of timely prosecution” or “other substantial defect, irregularity or failure of action by the appellant with respect to the prosecution or perfection of such appeal.” C.P.L. § 470.60 (emphasis added). The same equitable principles underlying the fugitive disentitlement doctrine apply to the statute. See People v. Traveras, 10 N.Y.3d 227, 233 (2008) (appropriate to dismiss appeals of defendants who had absconded for 8 and 17 years, thereby prejudicing the People). Defendants subjected to forced deportation are not responsible for their absence. Recognizing the Appellate Division’s discretionary statutory authority to dismiss, this Court found that it could not be “accorded such an expansive view as to curtail defendants’ basic entitlement to appellate consideration” because of their involuntary deportation. Ventura, 17 N.Y.3d at 681. B. Appellant Was Entitled to At Least One Opportunity for Appellate Review of the Ineffective Assistance of Counsel Claim That Went to the Heart of His Conviction’s Validity Contrary to the Appellate Division’s decision, that Mr. Harrison’s right to counsel claim was on collateral rather than direct appeal should not have disentitled him to review. Mr. Harrison’s ineffective assistance claim, raised at the first 17 opportunity in a 440 motion, addressed the basic validity of his guilty plea and whether that plea was knowing, intelligent, and voluntary. Because of the fundamental nature of his claim, the logic underlying Ventura supports the conclusion that he was entitled to at least one chance for intermediate appellate review of its merits. “In today’s criminal justice system [ ] the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (citing Rachel E. Barkow, “Separation of Powers and the Criminal Law,” 58 STAN. L. REV. 989, 1034 [2006] [defendants “who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes”]). The decision to plead guilty is extremely important and one of the few choices the defendant makes personally. See Jones v. Barnes, 463 U.S. 745, 751 (1983). In choosing to plead guilty, the defendant waives many of his basic rights, including the right to a jury trial. Consequently, a plea of guilty is valid only if it is entered knowingly, intelligently and voluntarily, e.g., People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993); People v. Nixon, 21 N.Y.2d 338 (1967), “with [a] full understanding of the consequences.” Kercheval v. United States, 274 U.S. 220, 223 (1927). See also Brady v. United States, 397 U.S. 742, 748 (1970) (plea must be “voluntary expression of [defendant’s] own choice”). The longstanding test for assessing the validity of a guilty plea is whether it represented “a voluntary and intelligent choice among the alternative courses of 18 action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970); People v. Francabandera, 33 N.Y.2d 429, 434 (1974). For the plea process to function properly, defendants must have effective counsel. Frye, 132 S. Ct. at 1407-08. Counsel “must give the client the benefit of [his] professional advice on th[e] crucial decision” of whether to accept or reject a plea. Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996) (quoting Amsterdam, Trial Manual 5 for the Defense of Criminal Cases). The knowing and voluntary nature of the decision to plead guilty can obviously be impacted by the quality of counsel’s advice – or lack thereof. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); see also Frye, 132 S. Ct. 1399 (ineffective representation for failure to convey favorable plea offer); Lafler v. Cooper, 132 S. Ct. 1376 (2012) (counsel ineffective for advising defendant to reject favorable plea). In the plea context, no less than at trial, the right to the effective assistance of counsel “is a bedrock principle in our justice system . . . [and] the foundation for our adversary system.” Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012). Accord Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013). For a noncitizen defendant, this foundational right to effective counsel is particularly important in the plea context. Proper immigration advice is essential if a noncitizen is to make a knowing, intelligent, and voluntary decision to plead guilty. Recognizing this, over a decade ago, this Court held that counsel’s “affirmative misstatements” about the risk of deportation made his representation less than reasonably competent. People v. McDonald, 1 N.Y.3d 109 (2003). 19 In Padilla v. Kentucky, the Supreme Court held that counsel’s responsibilities went further, and that counsel had an affirmative duty to explain the immigration consequences of a guilty plea to noncitizen defendants. 559 U.S. 356. The Court recognized that deportation is “an integral part – indeed, sometimes the most important part – of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” 559 U.S. at 364. See also Vartelas v. Holder, 132 S. Ct. 1479, 1491-92 nn.9-10 (2012) (noncitizen defendants’ “right to remain in the United States may be more important to them than any potential jail sentence”)(internal quotation marks and alterations omitted). Similarly, this Court has recognized that trial courts have an obligation to ensure that defendants are aware of potential immigration consequences before accepting their guilty pleas – an obligation grounded in the “bedrock of our constitutional order.” Peque, 22 N.Y.3d at 175-76. In New York, before pleading guilty, a defendant must receive immigration advice from counsel that is “specific to his or her personal circumstances” and a general warning from the court that the plea could result in deportation. Id. at 175-76, 190-91. This is because deportation is a plea consequence of such “tremendous importance, grave impact and frequent occurrence” that noncitizen defendants must understand the “high stakes” of pleading guilty. Id. at 190. In the guilty plea context, where defense counsel’s critical advice is typically given off-the-record, a collateral challenge will often “provide the first occasion to 20 raise a claim of ineffective assistance of counsel.” Martinez, 132 S. Ct. 1309; Trevino, 133 S. Ct. 1911 ( a procedural default can be excused when a state essentially requires that ineffective assistance of counsel claims be brought on collateral motion); see also People v. Grubstein, 24 N.Y.3d 500 (2014) (“usual procedural barriers to post-conviction relief must sometimes be relaxed when a violation of the right to counsel is claimed”). In excusing procedural barriers for these types of claims, the Supreme Court has also recognized how difficult it is for an incarcerated or detained individual to make an adequate pro se record proving counsel was ineffective. Martinez, 132 S. Ct. at 1317 (“Without the help of an adequate attorney, a prisoner will have [ ] difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim”). In New York State, C.P.L. § 440.10 motions generally provide the only avenue for defendants to raise ineffective assistance claims like Mr. Harrison’s. See, e.g., Peque, 22 N.Y.3d at 202 (when defendant’s complaint about counsel is predicated on factors that “do not appear on the face of the record, the defendant must raise his or her claim via a CPL 440.10 motion”) (emphasis added); People v. Haffiz, 19 N.Y.3d 883, 885 (2012) (when ineffective assistance of counsel claim is predicated on “matters and facts not found in the record on appeal,” it “should be raised in a postconviction application under CPL article 440, where the basis of the claim may be fully developed”). See also People v. Baret, 23 N.Y.3d 777, 806 (2014) (Lippman, J., dissenting) (counsel’s immigration “advice will not be on the record, and defendants by necessity can seek relief only in post-conviction CPL 440.10 proceedings”) (emphasis added). 21 As a practical matter, therefore, a 440 motion raising an ineffective assistance of counsel claim is an “initial-review collateral proceeding.” See Martinez, 132 S. Ct. at 1313. An appeal from the denial of such a motion is, therefore, “the equivalent of a prisoner’s direct appeal as to [that] claim.” Id. at 1317. A 440 appeal is particularly crucial if, as is often the case in New York, it is the first time the defendant is raising his ineffective assistance of counsel claim with representation by counsel. Like the direct appeal of the defendants in Ventura, Mr. Harrison’s collateral appeal was his first and only opportunity for appellate review of the critical claim in his case, making access to the intermediate appellate court “imperative.” See Ventura, 17 N.Y.3d at 680-81. And, just like the defendants in Ventura, Mr. Harrison received a “complete lack of intermediate appellate review” of his ineffective assistance of counsel claim. Id. It was also his first chance to raise this essential claim with the benefit of counsel. It would be fundamentally unfair to dismiss Mr. Harrison’s right to counsel claim without any appellate review simply because, procedurally, his claim had to be brought through a collateral appeal rather than a direct appeal. In deciding that, because Mr. Harrison’s appeal was by “permission” rather than as of right, Ventura did not apply, the Appellate Division relied on People v. Diaz, 7 N.Y.3d 831 (2006), in which this Court concluded that an involuntarily deported defendant would be “unavailable to obey the mandate” of the Court of Appeals. Ventura, however, effectively limited the application of Diaz to this Court. It emphasized that this Court has greater discretion to dismiss because a case generally 22 reaches it only after an intermediate appellate court has already issued a decision on the merits. Ventura, 17 N.Y.3d at 680-81. See also Diaz, 7 N.Y.3d 831 (defendant already had his appeal decided on the merits by the Appellate Division in People v. Diaz, 21 A.D.3d 58 [1st Dep’t 2005]); People v. Parmaklidis, 38 N.Y.2d 1005 (1976) (same); People v. Del Rio, 14 N.Y.2d 165 (1964). In contrast, the Appellate Division has less discretion to dismiss because it considers appeals in the first instance. Ventura, 17 N.Y.3d at 680-81. 6 In similar situations, other jurisdictions have declined to dismiss post- conviction, collateral appeals despite the defendants’ deportation. See, e.g., United States v. Flores, 2013 WL 5670924, at *1 (S.D. Cal. 2013) (ruling on merits of deported defendant’s coram nobis application); Comm. v. Dias, 2015 WL 711589, at *1 (Mass. App. Ct. 2015) (same; post-conviction motion); People v. Guzman, 962 N.E.2d 1182 (Il. App. 3d 2011) (same; Padilla claim on collateral motion); Popoca-Garcia v. State, 334 P.3d 824, 829 (Idaho Ct. App. 2014) (same when defendant deported before decision on his post-conviction Padilla hearing); State v. Garricks, 2013 WL 1830813, at *1 (N.J. Super. Ct. App. Div. 2013) (same; appeal of post-conviction Padilla motion); State v. Cabanillas, 2012 WL 2783182, at *1 (Ariz. Ct. App. 2012) (remanding for Padilla evidentiary hearing even though defendant was deported). Cf. St. Juste v. Comm’r of Correction, 155 Conn. App. 164 (Conn. App. Ct. 2015) (dismissing habeas petition as 6 Notably, subsequent to Ventura, this Court has declined to exercise its discretionary authority to dismiss based on deportation. See People v. Andrews, 23 N.Y.3d 605, 614 n.1 (2014). 23 moot because no basis in record that conviction was impediment to reentry into the United States). Likewise, the First and Third Departments have both ruled that a defendant’s deportation is not a ground to dismiss a collateral motion. See Badia, 106 A.D.3d 514 (defendant’s “physical inability to appear in court was not a proper basis for failing to entertain the [440.10] motion”); Carty, 96 A.D.3d at 1093 n.1 (citing Ventura in declining to dismiss defendant’s C.P.L. § 440.10 appeal because he had been deported); see also People v. Scott, 113 A.D.3d 491 (1st Dep’t 2014) (declining to dismiss a Sex Offender Registration Act appeal because the defendant had been deported). C. Ventura’s Holding Was Not Limited to Dismissal Issues and Appellant Was Not “Unavailable” This Court held in Ventura that, as a “matter of fundamental fairness,” all “criminal defendants shall be permitted to avail themselves of intermediate appellate courts.” Ventura, 17 N.Y.3d at 682. It did not limit this holding to cases raising only dismissal issues. On the contrary, it concluded that the “perceived inability to obey the mandate of the court” was not “implicated,” noting that, 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.” Id. The Appellate Division’s conclusion that Ventura applies only to dismissal issues misconstrues and artificially narrows Ventura. 24 Additionally, the Appellate Division failed to consider the many ways Mr. Harrison can participate in further proceedings if the court vacates his conviction or remands his case for a hearing. As a factual and practical matter, Mr. Harrison was and is available to obey the mandate of the Appellate Division. Mr. Harrison was a lawful permanent resident prior to his conviction in this case, which was the sole basis for his deportation. If the Appellate Division vacates his guilty plea, that would eliminate the basis of his deportation and remove the only obstacle to his return to the United States under the lawful status he enjoyed previously. See ICE Enforcement Regulations, “Facilitating the Return to the United States of Certain Lawfully Removed Aliens,” available at, http://www.ice.gov/doclib/foia/dro_policy_memos/11061.1_current_policy_facilita ting_return.pdf (last visited Apr. 11, 2014). See also Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir. 2006) (when conviction that played a “key part” in removal is vacated, the individual is entitled to new deportation hearing); Johnson v. Ashcroft, 378 F.3d 164, 171 (2d Cir. 2004) (same). In the event that the Appellate Division remands Mr. Harrison’s case to the trial court for a hearing, he will also be able to obey that order. In the likely event that Mr. Harrison choses to testify, he can do so. 7 Trial courts have broad discretion to 7 Alternatively, Mr. Harrison could choose to waive his appearance at a hearing. Although it is the defendant’s burden at a 440 hearing, it would be Mr. Harrison’s choice whether his testimony is needed to meet that burden. See C.P.L. § 440.30(5) (defendant “has a right to be present at such hearing but may waive such right in writing). This approach has been used in other jurisdictions. See e.g., See also People v. Terefenko, 18 N.E.3d 550, ¶ 8 (Il. App. 3d 2014), appeal denied, No. 118364, 2015 25 secure testimony of witnesses who cannot be physically present in the courtroom through the use of “innovative procedures.” People v. Wrotten, 14 N.Y.3d 33, 37 (2009) (“court’s inherent powers” “vest it with the authority to fashion a procedure” allowing someone “living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York”). There is no reason why Mr. Harrison cannot testify via two-way video conference, closed- circuit television, or telephone. Video testimony is already in use in New York 440 hearings for defendants unable to be present because of their detention in federal immigration facilities. See People v. Roberts, 36 Misc.3d 1239(A), 964 N.Y.S.2d 62 (Sup. Ct., N.Y. County 2012) (defendant testified at 440 hearing via “video hookup” from Alabama detention center); People v. Gasperd, 33 Misc. 3d 1228(A), 939 N.Y.S.2d 742 (Sup. Ct., Kings County 2011) (defendant “unable to appear personally” because detained in federal immigration facility was “able to attend the hearing via audio and visual teleconference”). See also People v. Mohammed, Doc. No. 2008KN046059 (Sup. Ct., Kings County 2012) (Jeong, J.) (court found defendant was “present” for 440 hearing via two-way video from federal immigration detention center despite defense objection that he had right to appear in person); People v. Paredes, Ind. 1104/04 (Sup. Ct., N.Y. County 2010) (Ward, J.) (defendant testified via closed-circuit television WL 427386 (Ill. Jan. 28, 2015) (after appellant was deported while his appeal was pending, on remand, the parties agreed to hold evidentiary proceedings in his absence). 26 from federal immigration detention center). The First Department has already successfully employed this technology for a deported defendant, allowing him to testify at his hearing via Skype from the Dominican Republic (A. 213-14). In addition, Mr. Harrison could seek a non-immigrant visitor visa to return for a hearing or reprosecution. Although his conviction for attempted weapon possession in this case rendered him deportable, it did not render him inadmissible. See 8 U.S.C. § 1182(a)(2) (listing criminal grounds of excludability); Matter of Granados, 16 I. & N. Dec. 726, 1979 WL 44438, **2-3 (BIA 1979) (possession of a sawed-off shotgun not an excludable offense); Blake v. Carbone, 489 F.3d 88, 95 (2d Cir. 2007) (citing Granados for the proposition that a firearms offense is not the “basis of any ground of exclusion”). Normally, an individual who has been deported must wait 10 years before seeking readmission. See 8 U.S.C. § 1182 (a)(9)(A)(ii), (iii) (immigrant is inadmissible for ten years after date of physical removal, unless Attorney General consents to readmission). Mr. Harrison, however, could apply to the Attorney General for readmission to be present for continuing proceedings in this case. See 8 U.S.C. § 1182 (a)(9)(A)(ii), (iii). Finally, the District Attorney could seek Mr. Harrison’s return for the hearing or for reprosecution. See United States v. Filippi, 918 F.2d 244 (1st Cir. 1990) (putting “onus” on government to request “Special Public Interest Parole” so foreign defense witness could come to the United States to testify). See also 8 U.S.C.A. § 1182 27 (d)5(A)(“Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis”). D. Fundamental Fairness Dictates Allowing Appellant His Day in Appellate Court Just like the defendants in Ventura, Mr. Harrison was involuntarily deported as his appeal was pending, had no intention of forfeiting his appeal, and had a “greater need” for appellate review because of the “tremendous ramifications of deportation.” Ventura, 17 N.Y.3d at 681. See also Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947) (the stakes for an immigrant defendant are “indeed high and momentous”); Bridges v. Wixon, 326 U.S. 135, 147 (1945) (deportation would “result in the loss of all that makes life worth living”) (internal quotation marks omitted); Peque, 22 N.Y.3d at 175- 76 (2013) (deportation a consequence with “tremendous importance, grave impact and frequent occurrence”). Deportation was, in fact, the very harm Mr. Harrison was trying to prevent through his appeal. Dismissing Mr. Harrison’s right to counsel claim because he was deported – in other words, because the prejudice from counsel’s ineffective performance became concrete – was particularly unfair. This was all the more troubling because Mr. Harrison’s claim of ineffective assistance of counsel was strong. It is well-established that counsel’s performance is inadequate if he provides incorrect immigration advice. McDonald, 1 N.Y.3d 109 (counsel’s representation was not reasonably competent because of “affirmative 28 misstatements” about the risk of deportation). Accord Padilla, 559 U.S. 356; see Strickland, 466 U.S. at 687-88, 694; People v. Baldi, 54 N.Y.2d 137, 147 (1981). Here, Mr. Harrison affirmed that counsel told him he “would not have to worry about the immigration consequences of his plea because he had been in the United States so long” (A. 22). In fact, his plea to attempted second-degree weapon possession had clear, mandatory removal consequences. P.L. § 265.03 (3); 8 U.S.C § 1227 (a)(2)(C); 18 U.S.C § 921(a)(3).8 Therefore, if the court credited Mr. Harrison’s specific, uncontroverted, and consistent allegations, counsel’s advice was wrong and his performance was inadequate. See McDonald, 1 N.Y.3d at 112 (counsel ineffective for providing inaccurate advice that plea “would not result in deportation because of [d]efendant’s lengthy residence in the United States and the fact his three children were born and reside in the United States”). Neither the trial judge’s warning that, “if the plea ha[d] a negative effect on his immigration status,” Mr. Harrison would not be able to withdraw it, nor the written caution that the plea “may result in [ ] deportation,” was a sufficient substitute for 8 The “class of deportable aliens” includes: Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable. 8 U.S.C § 1227 (a)(2)(C). “Firearm” includes “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C § 921(a)(3). 29 counsel’s accurate advice (A. 10, 12; emphasis added). Obviously, the court’s statements about what could or could not happen “if” his guilty plea had negative immigration consequences would have meant little to a defendant whose attorney had explicitly told him that his plea would not have such consequences and that he did “not have to worry” about that (A. 22). And any advice in the written waiver form was wholly irrelevant in the absence of any record assurance that Mr. Harrison had actually read the form or had it explained to him before signing it. In any event, in Peque, this Court made clear that the requirement that the court warn the defendant that he may be deportable is “distinct” and “independent” from counsel’s duty to provide accurate, specific, and detailed immigration advice. 22 N.Y.3d at 191, 193. Accord Padilla, 559 U.S. at 373-74 (despite plea judge’s mention of possible immigration consequences, it was still “critical” for “counsel to inform her noncitizen client” of the deportation risks) (emphasis added). Crucially, both the court’s warning and the written waiver incorrectly implied that any deportation consequences were uncertain. Neither informed Mr. Harrison that he faced concrete consequences and that his plea would subject him to mandatory deportation. Moreover, Mr. Harrison’s decision to reject the plea “would have been rational under the circumstances.” Padilla, 559 U.S. at 372; People v. Hernandez, 22 N.Y.3d 972, 975 (2013). He amply proved that the chance to avoid deportation was more important to him than the length of potential imprisonment by spending three years in a federal immigration facility far from his family just to get the chance to remain in 30 the United States. Additionally, at the time of his arrest, he had lived in the United States for seven years, attended high school here, and been employed here. His parents, siblings, grandmother, and child were all United States citizens living in America. He was only 22 years old at sentencing. He could have rationally been more concerned about banishment from the United States for the rest of his life than the chance he would spend several years in prison. As he explained, everything he “know[ ]s and [has] come to love” is in this country (A. 30). The Appellate Division could easily have determined that his rejection of the plea would have been completely rational. Mr. Harrison’s appeal was part of his active and persistent struggle to fight his deportation. He remained in immigration detention in Alabama for three years – more time than he was incarcerated for his conviction – just for a chance that the Appellate Division would give him relief from the conviction that was preventing him from remaining in the country where all his family, including his small child, live. His good- faith desire to continue with his appeal and remain in the United States was clear. His deportation should not have prevented him from continuing in this struggle. * * * Mr. Harrison, like thousands of other noncitizens, has been subjected to “the equivalent of banishment or exile” and separated from his American family based on a plea he entered into without knowing that it would have devastating consequences. 31 See Delgadillo, 332 U.S. at 391. He did everything in his power to have his 440 case resolved before he was deported: moving pro se to vacate his plea because counsel provided him the completely incorrect advice that he would not be deported, seeking and obtaining leave to appeal to the Appellate Division and assigned counsel, and fighting his deportation for three years while detained in an immigration facility in Alabama. To penalize Mr. Harrison because his appeal was from a 440 motion, as is required in New York for this type of claim, rather than a direct appeal would be fundamentally unfair. Mr. Harrison’s ineffective assistance of counsel claim addressed the core validity of his guilty plea. The logic of Ventura dictates that he be allowed intermediate appellate review of his claim. Especially because Mr. Harrison is willing and able to obey the mandate of the court if he is successful on appeal, the Appellate Division’s dismissal of his appeal without addressing the merits was an abuse of discretion. Denying someone like Mr. Harrison the critical opportunity to challenge the conviction that caused his deportation because of that deportation is a particularly cruel and arbitrary result. Accordingly, Mr. Harrison’s appeal should be reinstated and his case remanded to the Appellate Division for consideration of the merits of his claim. 32 CONCLUSION FOR THE FOREGOING REASONS, 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 Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 (212) 693-0085 ________________________ By: Allegra Glashausser Of Counsel Dated: March 24, 2015 New York, New York