The People, Respondent,v.Cristian Morales, Appellant.BriefN.Y.November 17, 2016APL -2015-00312 To Be Argued by: Appellate Term No. 2011-2816 NCR Adam S. Charnoff Nassau County, First District Court, No. 2010NA032763 Time Requested: 15 minutes Tammy J. Smiley Jason R. Richards AdamS. Charnoff Qeourt of ~ppeals ~tate of 1flebJ ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent} - against - CRISTIAN MORALES, D efendant-Appellant. RESPONDENT'S BRJEF MADELINE SINGAS D istrict Attorney, Nassau County Attomry for Respondent 262 Old Country Road l'vlineola, New York 11501 (516) 571-3800 FAX (516) 571-3806 Assistant District Attorneys of Counsel Brief and Appendix Completed March 16,2016 TABLE OF CONTENTS Table of Authorities .. ........ ............................. ........ ............................. ... ............................... i Issues for Review ........ .... .... .. .......... ... ...... ............... ..... .. .. .. .......... ....... .... .. ... ..... ... ..... ........ .. ... v Preliminary Statement ...... ... .............. ...... .. ..... ...................................................................... vi Statement of Facts Introduction ........ ............. ... .. ............. .. ... ................................................................ ..... ... 1 Defendant's Trial and Sentence .............. ... ......... .... ..... .. .... ... .... ........ .. ........................... 3 The Removal Proceedings ........ ... .. ....... ........... .. ......... ........... ..... ............ .. .. .......... ... .. .... 6 The Appeal to the Appellate Term ......................................... ......... ...... .. ...... .......... .... 7 The People's Motion to Dismiss the Appeal .................. .... .............. .... ... ..... ............... 9 The Decision of the Appellate Term ..................... ... .... ..... .. ............ .. ... .......... ... ...... ... 12 Judge Pigott's Order Granting Leave to Appeal to This Court ............. .... ........ ...... 12 Argument The Appellate Term's Dismissal Of Defendant's Appeal Was A Proper Exercise Of Discretion In Light Of Defendant's Voluntary, Protracted Disappearance Following His Deportation, And Because Defendant's Conviction Did Not Serve As The Basis For Deportation, And Defendant Will Not Be Available To Obey The Mandate OfThe Court (answering defendant's brief) ............... .... .... ................. ..... 13 A. Dismissal of Defendant's Appeal Was Appropriate Because Defendant's Voluntary Disappearance Following His Deportation Constituted an Abandonment of the Appeal, or, at a Minimum, a Failure on Defendant's Part to Prosecute and Perfect His Appeal, and, Therefore, a Determination of the Merits of Defendant's Appeal Would Have Been an Improvident Allocation of Finite Judicial Resources. Moreover, Counsel's Duty to Evaluate the Merits of Proceeding With the Appeal of a Deported Defendant Who Has Disappeared Does Not Place Counsel in a Position Adversarial to a Deported Defendant .......... .. .... .... ................. .. .......... ..... .. .................... ... ....... ... ......... ..... 16 B. Dismissal of Defendant's Appeal Was Appropriate Because Defendant's Deportation Was Not Caused by His Conviction in This Case, and Defendant Has Neither Claimed Nor Demonstrated How a Reversal of His Conviction Would Impact His Chances for Readmission or on His Ability to Participate in Future Legal Proceedings. Moreover, Counsel's Duty to Evaluate the Merits and Consequences of a Defendant's Appeal Prior to Perfecting the Appeal Does Not Adversely Affect Counsel's Ability to Act as a Zealous Advocate for a Deported Defendant ........ ... ............. ......... ... ....................... 24 Conclusion ............. ... ... ......... .................................... ......... ...... .............. ..... ... .......... .. ........ ... 3 8 TABLE OF AUTHO RITIES FEDERAL Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) ....................................... ..... ... .. 33 Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) .............................................................. ... 27 Hq_ywood v. Bureau of Immigration & Customs Enforcement, 372 Fed. Appx. 122 (2d Cir. 2010) ......................... .. .. .... .. .... .. ................ .. . 22 Hernandez v. Khahaifa, 2013 WL 3984958 (S.D.N.Y. July 13, 2013) ......... .................... .. 22 In re Lopez-Meza, 22 I. & N. D ec. 1188 (B.I.A. 1999) ............. .............................. .......... 27 Leocal v. Ashcroft, 543 U.S. 1 (2004) .................... .. .. ............... ..... ......... ... ... .. ...... .... .. .... .. .... 28 Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) ...................... .. ............ ........... 27 Murillo-Salmeron v. I.N .S., 327 F.3d 898 (9th Cir. 2003) ........ ...... .. .. ..................... .......... . 27 Ruiz-Lopez v. Holder, 682 F.3d 513 (6th Cir. 2012) ..... .. .......................................... .. .. .... 27 United States v. Ashraf, 628 F.3d 813 (6th Cir. 2011) .... .. .............. .. .................... .............. 35 United States v. Hamdi, 432 F.3d 11 5 (2d Cir. 2005) .................. ........... ..... ... .. ............. 34,35 United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007) ...................... .. ..... ........ . 35 NEW YORK STATE People v. Anderson, 66 N.Y.2d 529 (1985) .... .. ...................... .......... .. ...... .................. .. .. ...... 32 People v. Bacon, 46 N .Y.2d 1073 (1979) .. ........................................................................... 25 People v. Bourne, 139 A.D.2d 210 (1st Dept. 1988) .................................................... ... .... 17 People v. Cooper, 98 N .Y.2d 541 (2002) ...................... ................................................... .... . 32 People v. Cullum, 170 A.D.2d 524 (2d Dept. 1991) ....................................................... .. .. 19 1 Page People v. DeLee, 24 N.Y.3d 603 (2014) ......... ... ...... ....... ................. ..... ............................... 17 People v. Del Rio, 14 N.Y.2d 165 (1964) ...................... .. .......... ........................ .. .. .... ........... 25 People v. Dia~ 7 N .Y.3d 831 (2006) .. ...................... .... .. .. .. .............................. .... ........ .. 25,36 People v. Fernande~ 5 N.Y.3d 813 (2005) ............................ .. .. .... .... ................................... 21 People v. Gardner, 2010 N.Y. Slip Op. 66809(0) (2d Dept. March 26, 2010) .... .. .. .. ...... 36 People v. Genet, 59 N.Y. 80 (1874) ............... .. .. ... ...... .................. .. ...... ...... ................ .. ... 25,36 People v. Gran0 31 Misc. 3d 145(A) (App. Term, 2d, 11th & 13th Jud. Dists., 2005) ................................... .. .... .................. 22 People v. Jinks, 140 A.D.2d 371 (2d Dept. 1988) .. ........... .......... ...................... ...... ....... ..... 19 People v. Lamb, 7 Misc. 3d 138(A) (App. Term, 9th & 10thJud. Dists., 2005) .. .... .. .. .................... .. .. ................................. 20 People v. Lewis, 31 Misc. 3d 149 (A) (App. Term, 9th & 10th Jud. Dists. , 2011) .............. .... .. .. ........... .. ............ .... .. .............. 19 People v. Malloy, 3 7 Misc. 3d 131 (A) (App. Term, 2d, 11th & 13th Jud. Dists., 2012) ...... ..................... .. .............. ........ ........ 22 People v. Morales, 26 N.Y.3d 1041 (2015) ........................ ...... .. ......... .... .. ...................... vii,12 People v. Morales, 2011 Slip Op. 93998(0) (App. Term, 9th and 10thJud. Dists., December 27, 2011) .... .. .... ............................. 8 People v. Morales, 2015 Slip Op. 82166(0) (App. Term, 9th and 10thJud. Dists. , August 10, 2015) .... .... ... .. .... .............. vi,2,12,14 People v. Pamaklidzs, 38 N .Y.2d 1005 (1976) .... ... ........ ........ .. .. .......... .............. ... .. .. ............ 25 People v. Pere~ 23 N.Y.3d 89 (2014) .... .......... ........ ........ ...................... .. ........ .. ......... .......... 29 .. 11 Page People v. Rryes, 292 A.D .2d 271 (1st Dept. 2002) ............................... .......... .................... . 28 People v. Stult~ 2 N.Y.3d 277 (2004) .............................. .. .. .................... ............ .. .. ........... 21 People v. Suber, 19 N.Y.3d 247 (2012) ............... .. .. ........................................................ .. ... 17 People v. Syville, 15 N.Y.3d 391 (2010) ................ .. ........... .. .. .. ...................... .............. .. .. .. . 19 People v. Ventura, 17 N.Y.3d 327 (2011) .............. 2,3,8,10,11,13,15,16,17,28,29,30,31,32 People v. Vmtura, 2009 N.Y. Slip Op. 82726(U) (2d Dept. September 10, 2009) ... 35,36 People v. Watson, 77 N.Y.2d 857 (1991) ........................................ .... .. ........ ...................... . 19 People v. West, 100 N.Y.2d 23 (2003) ........ .. .... ............... .. ....................................... ........... 19 OTHER STATES Matter ofEdwardo V, 70 Cal. App. 4th 591 (Ct. App. 1999) ..... .. ................................... 22 People v. Puluc-Sique, 182 Cal. App. 4th 894, 106 Cal. Rptr. 3d 365 (Ct. App. 2010) .................................. .. ........ .................. ............ 32 STATUTES Criminal Procedure Law § 340.50(2) ......... ......................................... ..... .. ... .... ... ........ 36,37 Criminal Procedure Law § 460.10 ....................................... .. .... .. .. .......... ...... .... ...... .. .. .. .. .. 19 Criminal Procedure Law§ 460.20(2)(a)(i) ........................................... .. ........ .. ............ vii,12 Criminal Procedure Law§ 460.70 ........................... .................. ................. .. .. ........ .... 19, 23 Criminal Procedure Law § 470.60(1) ................................. ....... ...... ............... 9,10,14,15,28 Criminal Procedure Law § 470.60(2) ........................... .. ................. .. ...... .............. .. .......... 28 Criminal Procedure Law§ 470.60(3) .... ... .. ... .... .. ... ... .. ... ... .. .. ... ... .... ............................... .. . 14 1ll Page Immigration and Nationality Act§ 212(a)(6)(A)(i) ... .. ... .. ........ ... ...... ....................... ... ... . 26 Immigration and Nationality Act§ 241(a)(1)(B) .... .............. .. ....... ..... .. ............ .......... .. .. ... 6 Immigration and Nationality Act§ 241(a)(5) .............. .. .. ...... .. ...... .. .. .... ............. ... ............. 7 New York Court Rules and Regulations§ 1200.0 .... .................. ........... ... .... ....... ... ... ... ... 21 8 United States Code§ 1182 .... ..... ................ ... .... ...... .... .... ... .... ....... .. ...... ... ...... ........ .. ..... .. 26 8 United States Code§ 1182(a) ..... ... ...... .. .... ... .. ..................................... .. ... .... ... ... ...... ... .. .. 33 8 United States Code§ 1182(a)(2) ............................................ ........... ................... ........... 34 8 United States Code§ 1182(a)(9)(A)(iii) .................... .. ...... .......... ........ .. ...... .. .. ............... 33 8 United States Code§ 1182(d)(5)(A) ...... .. .... .. .. .. .. .. .... ........ .... .......... .... ... ..... .. ................. 33 8 United States Code§ 1326(a)(1) .... .... ... .............. ... .............. ... ... .... .... ... ... ..... ... .... .... .. ..... 26 8 United States Code§ 1326(a)(2) ..... ... ........ .. .. .. ..... .......... .. ......... .... ...... .. .. ....... ..... .... ....... 26 V.T .L. § 319(1) .. .......... .. ..... .. ... ..................... ........ ... .... ... ... ... .. ............... .. ... ............ .. .... .. ..... .. 5 V.T.L. § 375(22) ...... ....... .......... .......... ........ .. ..... ..... ... ... ........... .. ... .. ... .... .... ....... ... ... ....... ... vi,5 V.1""'.L. § 509(1) ...... .......... ... ........ ...... ......... .. ...................... ..................... .. ..... .. ... .. ...... ... . vi,5,9 V.rf.L. § 1163(a) ...... .. .. .... .......... ...... .. ... ..... ... ....... .... .... ...... .... ..... .. ... ...... ....... .. ... ... ...... .... .. .iv,5 V.T .L. § 1180(D) .... .... .......... ..... .......... ......... ........ ... ... .... ....... ....... ... .... ....... .................. ..... vi,5 V.T.L. § 1192(2) .... ... .... .... .... ..... .............. .. ...... ....... .......... .. ... .......... .... .............. .. ... .. vi,1,5,26 V.T.L. § 11 92(3) .. ...... ... .... .... ... ........... ........... .. ....... ... ...... ... ....... .. .... .................... vi, 1 ,5,27 ,28 OTHER AUTHORITIES Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, Criminal Procedure Law§ 470.60 (2009) .. ... ............................... .......... .... 14 lV ISSUES FOR REVIEW 1. Whether the Appellate Term properly exercised its discretion by dismissing defendant's appeal without prejudice where defendant: (a) disappeared immediately upon his deportation to Honduras in November 2011; (b) did not once contact his appellate attorney during the three and one-half years preceding the perfection of his appeal in April 2015; (c) did not participate in the selection or development of the issues presented in appellate counsel's appellate brief; and (d) expressed no interest in the continued prosecution of his appeal? 2. Whether the Appellate Term properly exercised its discretion by dismissing the defendant's appeal on the ground that defendant had been deported, for the second time, for a reason other than the underlying conviction in this case, and defendant would be unavailable to obey the mandate of the court if his judgment of conviction were reversed and remanded for further court proceedings? v qcourt of ~ppeals ~tate of ~etu ~ork ---·u~ : ~····--- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against - CRISITAN MORALES, Defendant-Appellant. RESPONDENT'S BRIEF PRELIMINARY STATEMENT Defendant Cristian Morales appeals from an order of the Appellate Term, Ninth and Tenth Judicial Districts, dated August 10, 2015. That order dismissed the defendant's appeal from a judgment of the District Court of Nassau County, First District, rendered on October 13, 2011, convicting defendant, following a jury trial, of two counts of driving while intoxicated (V.T.L. § 1192[2] and [3]) and one count each of speeding (V.T.L. § 1180[D]), making an improper or unsafe turn without signaling (V.T.L. § 1163[a]), and operating a motor vehicle with a broken glass windshield (V.T.L. § 375[22]), and upon defendant's plea of guilty, of one count of operating a motor vehicle without being duly licensed (V.T.L. § 509 [1]). People v. Morales, 2015 V1 N.Y. Slip Op. 82166(U) (App. Term, 9th and 10th Jud. Dists., August 10, 2015). Defendant was sentenced to time served, which consisted of pretrial prison time of approximately ten months, a mandatory surcharge of $175.00, a crime victims assistance fee of $250.00, D.W.I. surcharges of $170.00 and $25.00, a revocation of defendant's privilege to drive in New York State, and a conditional discharge, premised upon the installation of an ignition interlock device on any vehicle driven by defendant during the ensuing twelve months (Prager, J., at pretrial hearings; Alexander, J., at trial, plea, and sentence). By order dated November 30,2015, the Honorable Eugene F. Pigott., Jr. , granted defendant's application for leave to appeal pursuant to C.P.L. § 460.20(2)(a)(i). People v. Morales, 26 N.Y.3d 1041 (2015). Defendant has completed serving his sentence of imprisonment. On or about November 18, 2011, defendant was deported to Honduras, and is now at liberty. There were no co-defendants. .. V11 STATEMENT OF FACTS Introduction On October 13, 2011, a trial jury convicted defendant of two counts of operating a motor vehicle while intoxicated (V.T.L. § 1192[2] and [3]) , and various lesser traffic offenses, and defendant was sentenced on that same date. Defendant's attorney filed a notice of appeal, dated October 20, 2011. Four weeks later, on November 18, 2011, defendant was deported to Honduras on the basis that he was illegally present a second time in the United States, after having already been deported to Honduras on June 22, 2005, for unlawfully entering the United States in 1995 and thereafter disappearing. Following his deportation, defendant vanished without a trace, and defendant's whereabouts and existence remained completely unknown during the ensuing four years. On April 21 , 2015, three and one-half years after defendant's deportation and disappearance, appellate counsel -- without ascertaining beforehand defendant's existence, whereabouts, or desire to proceed with his appeal -- filed on defendant's behalf a brief in the Appellate Term, containing numerous appellate claims. In a decision and order dated August 10, 2015, the Appellate Term dismissed defendant's appeal without prejudice to a motion to reinstate the appeal if defendant should return to that court's jurisdiction. The Appellate Term based its order of dismissal on the grounds that: (1) defendant had been deported and was no longer available to obey the mandate of the court; and (2) defendant failed to have any contact with his attorney. People v. Morales, 2015 N.Y. Slip Op. 82166(U) (App. Term, 9th and 10thJud. Dists., August 10, 2015). The question presented in this appeal is whether the Appellate Term correctly dismissed defendant's appeal. Dismissal of the appeal by the Appellate Term was authorized because defendant demonstrated a lack of interest in -- indeed, an abandonment of -- the continued prosecution of his appeal as evidenced by his protracted disappearance for several years and by his complete lack of contact with his appellate attorney. Moreover, counsel was without authority to prosecute this appeal on his behalf, based upon counsel's inability to locate or contact defendant during the three and one-half years preceding the perfection of his appeal. Dismissal of defendant's appeal was also authorized because defendant had been deported on a basis other than the conviction in this case, and reversal of his conviction would have no effect on defendant's chances for readmission into the country or on his ability to be physically present to obey tl1e mandate of the court in the event of a reversal and remand for furtl1er legal proceedings. People v. Ventura, 17 N.Y.3d 675 (2011), does not compel a different conclusion. The involuntarily-deported defendants in Ventura, unlike the defendant in this case, had invested considerable effort -- and demonstrated significant interest -- in the perfection of their appeals, both before and after their deportations. Thus, the defendants in Ventura, unlike this defendant, demonstrated that they had "sought" to 2 "avail themselves" of their fundamental right to intermediate appellate review of their convictions. Moreover, this defendant's deportation was unrelated to his conviction-- of non-deportable offenses -- that is the subject of his appeal. Thus, defendant's deportation did not create a "greater need" for him "to avail [himself] of the appellate process" because reversal of his conviction would have no deportation ramifications or any effect on his ability to be physically present to obey the mandate of the court at future legal proceedings. Id. at 680. In addition, the orders of the Appellate Division appealed from in V entura dismissed the defendants' appeals with prejudice, leaving them, unlike this defendant, without recourse should they return to the jurisdiction of this State's courts. Defendant's Trial and Sentence At defendant's trial on drunk driving and traffic violation charges, Police Officer RYAN McGAULEY testified that, on December 19, 2010, defendant sped past the police officer's automobile in a 1999 Dodge Ram pick-up truck on Fulton Street, in the town of Hempstead, New York, at a rate of speed exceeding 50 miles per hour where the posted speed limit was 30 miles per hour (AA66).1 Defendant sped past Officer McGauley's police car while defendant's truck was in the right-hand lane (AA66). Without slowing down, defendant made a left tum-- at the same high rate of speed -- onto a side street from the right lane of Fulton Street and then made a 1 Numbers in parentheses preceded by"RA." refer to respondent's supplementary appendix; those preceded by" AA." refer to appellant's appendix. 3 right turn mto a parking lot of an apartment building complex (AA.66). Officer McGauley pulled over defendant's ttuck, observed defendant exhibit several signs of physical intoxication -- including bloodshot, glassy eyes, slurred speech, a strong odor of alcohol on defendant's breath, and fumbling physical gestures -- and noted that defendant was unable to produce a valid driver's license, vehicle registration card, or insurance paperwork, when Officer McGauley asked him to do so (AA.67). Officer McGauley transported defendant to the Central Testing Section of the Nassau County Police Department, where defendant was administered two Intoxilyzer-SOOOEN breath tests by Police Officer RAYMOND COLLINS, during which defendant attempted to subvert Officer Collins's instructions to seal his mouth around the intoxilyzer tube and to exhale with sufficient force and duration of time in order to obtain a breath sample that originated in the lung sacs. Ultimately, Officer Collins was able to obtain two "insufficient" blood alcohol sample levels of .12% and .13% (AA.78-81). Officer GREGORY NICHOLSON testified that he regularly maintained the Intoxilyzer-SOOOEN machine that was used to administer the breath tests to defendant. Officer Nicholson also provided expert opinion testimony regarding the accuracy of blood-alcohol-level readings of breath samples obtained from defendants who exhaled with "insufficient" force or for an "insufficient" length of time. Officer Nicholson explained that blood-alcohol-level readings obtained from "insufficient" breath samples were accurate, but that the blood-alcohol-level readings were restricted to the minimum levels that appeared in the samples provided. Thus, 4 the defendant 111 this case had mznzmum blood-alcohol-levels of .12% and .1 3% (AA.69-77). On October 13, 2011, the jury convicted defendant of two counts of operating a motor vehicle while intoxicated (V.T.L. § 1192[2] and [3]), and one count each of speeding (V.T.L. § 1180[D]), making an improper or unsafe turn without signaling (V.T.L. § 1163[a]), and operating a motor vehicle with a broken glass windshield (V.T.L. § 375[22]) (AA.84, AA.142-45).2 On the same date, following the verdict, defendant was sentenced to a term of imprisonment of pretrial jail time already served, a mandatory surcharge of $175.00, a crime victims assistance fee of $250.00, D .W.I. surcharges of $170.00 and $25.00, a revocation of defendant's privilege to drive in N ew York State, and a conditional discharge, premised upon the installation of an ignition interlock device on any vehicle driven by defendant during the ensuing twelve months (AA.85, AJ\.153-55) . Defendant's trial attorney filed a notice of appeal, dated October 20, 201 1 (AA.169). 2 D efendant had originally been charged, under Docket Number 2010NA032763, with two counts of operating a motor vehicle while intoxicated (V.T.L. § 1192[2] and [3]), one count of operating a motor vehicle without being duly licensed (V.T.L. § 509[1]), one count of failure to have proof of flnancial security (V.T.L. § 319[1 ]), one count of speeding (V.T.L. § 1180[D]), one count of making an improper or unsafe turn without signaling (V.T.L. § 11 63 [a]) , and one count of operating a motor vehicle with a broken glass \Vindshield that distorted visibility (V.T.L. § 375[22]) (AA.157- 63). At trial, the court did not submit to the jury one count of operating a motor vehicle without being duly licensed (V.T.L. § 509[1]) because defendant had pleaded guilty to that count mid-trial (AA.66, 154). The count of failure to have proof of financial security (V.T.L. § 319 [1 ]) also was not submitted and ultimately was dismissed (AA.85, 150-51). 5 The Removal Proceedings Defendant's arrest in the instant case in 2010 revealed to law-enforcement authorities defendant's second successive illegal presence in the United States, after defendant had already been deported in 2005 for unlawfully entering the country in 1995 and for failing to appear at his deportation hearing. Defendant was caught entering the United States on June 8, 1995, in Brownsville, Texas, under the name "Rolando Otoniel Melendez-Jiminez," and was charged with illegally entering the country without inspection on June 8, 1995, in violation of the Immigration and Nationality Act § 241(a)(1)(B). Defendant was not taken into custody at that time. Instead, defendant was issued an Order to Show Cause and a Notice of Hearing, advising him that he was required to appear at a deportation hearing that was to be scheduled on a future date (AA.22-24). Defendant failed to appear voluntarily for his deportation hearing on July 9, 1995, and an Order of Deportation was issued by Immigration Judge Michael K. Suarez on October 5, 1995 (AA.20). The ground stated for deportation was that defendant had illegally entered the country without inspection on June 8, 1995, in violation of the Immigration and Nationality Act § 241(a)(1)(B) (AA.20). The Order of Deportation was executed on June 22, 2005, when defendant was located and deported (AA.26).3 3 It is unknown how federal immigration officials ascertained defendant's whereabouts in 2005 prior to his deportation, or how defendant subsequently managed to re-enter tl1e United States. 6 On October 17, 2011, four days after defendant was sentenced on this case, federal immigration officials served on defendant a Notice of Intent/ Decision to Reinstate a Prior Order of Removal, dated December 21, 2010, in which defendant was charged, pursuant to the Immigration and Nationality Act § 241(a)(S), with being illegally present in the United States after having already been previously deported to Honduras on June 22, 2005 (AA026)0 Defendant signed and dated the box entitled "Acknowledgment and Response" (AA026)0 On November 1, 2011, a Warrant for Removal/Deportation of defendant was signed by John Tsoukaris, United State Irnmigration and Customs Enforcement ("I.C.Eo") Field Office Director of the Newark, New Jersey, branch office (Al\028)0 On November 18, 2011 , defendant was deported to Honduras on the ground that he had illegally reentered the United States at an unknown time and place "after having been previously removed 0 0 0 while under an order of exclusion, deportation or removal," and thus was "subject to removal by reinstatement of the prior order" of deportation (AA026)0 The Appeal to the Appellate Term Two weeks before he was deported, on November 4, 2011 , defendant signed an affidavit which was appended to a motion filed on defendant's behalf by the Legal Aid Society of Nassau County, seeking permission to proceed as a poor person in this case (AA0164-68, AA0170-7 4) 0 Five weeks after defendant had been deported, on 7 December 28, 2011, the Appellate Term, Ninth and Tenth Judicial Districts, granted appellate counsel's motion for poor person relief and assigned the Legal Aid Society to prosecute defendant's appeal. People v. Morales, 2011 N .Y. Slip Op. 93998(U) (App. Term, 9th and lOthJud. Dists., December 27, 2011). During the ensuing three and one-half years, defendant's whereabouts were completely unknown. Defendant made no effort to contact his appellate attorney in order to conflrm his continued existence, to provide contact information, or to confum his desire to prosecute his appeal. On or about April 22, 2015, three years and four months after defendant disappeared following his deportation to Honduras, defendant's assigned appellate counsel, Dori Cohen, Esq., of the Legal Aid Society, flied a brief in the Appellate ~rerm, in which counsel noted in the briefs preliminary statement [u]pon information and belief, the source of which is communication with appellant's immigration attorney, appellant was ordered removed from the United States on November 18, 2011 .. . and subsequently deported to Honduras. Pursuant to People v. T/ entura, 17 N.Y.3d 675 (2011 ), appellate counsel has proceeded with appellant's direct appeal, albeit without his input, as we are not in possession of af!Y current contact information for appellant. (AA.53) (emphasis added). In the body of the brief, appellate counsel then raised the following claims on defendant's behalf: (1) the trial jury's verdict of guilt was based on legally insufficient evidence; (2) the verdict was against the weight of the evidence; (3) the trial court improperly prevented defense counsel from calling an 8 expert witness to testify about the purported shortcomings of the Intoxilyzer 5000EN that was used in this case; ( 4) the trial court made erroneous Batson rulings; (5) the trial court improperly limited defense counsel's cross-examination of the People's witnesses; (6) the trial court made erroneous Sandoval rulings; and (7) the trial court improperly permitted the prosecutor to characterize defendant's repeated insufficient exhalations into the Intoxilyzer as "refusals" (AA.47-140). Defendant raised no challenges on appeal to the validity of his conviction, upon his plea of guilty, of operating a motor vehicle without being duly licensed (V.T.L. § 509[1 ]). The People's Motion to Dismiss the Appeal The People @ed in the Appellate Term a motlon to dismiss defendant's appeal, pursuant to C.P.L. § 470.60(1), on the following grounds of mootness, irregularity, and failure of action by defendant with respect to the perfection of his appeal: (1) defendant's whereabouts and existence were unknown during the entire time period leading up to, and including, the filing of defendant's appellate brief; (2) defendant failed to communicate with his assigned appellate attorney, or with any other judicial officer, regarding the instant appeal, and did not participate even to the slightest degree in the perfection of his appeal; and (3) defendant was deported for a reason entirely unrelated to his drunk-driving conviction, and, therefore, a reversal of defendant's judgment of conviction would have no effect on his ability to re-enter or remain in this country, or to obey the mandate of the Appellate Term or any other 9 court in the event of reversal of defendant's judgment of conviction and remand for further proceedings (AA.3-31). In papers opposing the People's monon to dismiss defendant's appeal, defendant's appellate attorney did not address the issues of defendant's disappearance or defendant's lack of interest or participation in the perfection of his appeal. Instead, counsel focused exclusively on the People's contention that defendant's appeal should be dismissed because defendant was deported for a reason unrelated to his convictions in this case and that he would be unavailable to obey the mandate of the court in the event of reversal of his conviction and remand for retrial. Counsel argued that nothing in Ventura indicated that the prohibition against dismissal of an appeal taken by an involuntarily deported defendant was limited only to appeals in which defendants sought outright dismissal of the accusatory instrument (AA.33-35). Counsel argued that Ventura applied equally to this case, even though defendant's Appellate Term brief raised claims of trial error in addition to raising claims involving legal sufficiency and weight of the evidence (AA.33-35). In addition, counsel argued that this Court, in its majority opinion in Ventura, articulated a new "blanl(et rule" for involuntarily deported defendants that invalidated the provisions of C.P.L. § 470.60(1), which had previously imbued the intermediate appellate courts with the discretion to dismiss pending appeals of defendants on the basis of mootness, substantial defect or irregularity, or failure of action by defendant with respect to the perfection of his appeal (AA.32-36). 10 The People filed a reply affirmation in opposition to defense counsel's interpretation of the Court's majority opinion in Ventura, calling attention to the unambiguous language contained in the majority opinion that reafflrmed the "broad authority of the intermediate appellate courts to dismiss pending appeals." Ventura, 17 N.Y.3d at 681 (AA.41-42). The People further noted that the majority opinion in Ventura referred only to a deported defendant's fundamental right to "seek" or "avail himself' ' of intermediate appellate review of his criminal conviction, not to a fundamental right of automatic intermediate appellate review of his conviction irrespective of the following: (1) whether defendant sought such appellate review; (2) whether defendant's whereabouts or existence were known at the time of the appeal; or (3) whether defendant participated in and provided input into the perfection of his appeal (AA.37-45). In addition, the People pointed to language contained in the majority opinion of Ventura -- e.g., references to "fundamental fairness" and "the tremendous ramiflcations of deportation" -- that clearly signaled this Court's reluctance to impose a rigid, mindless "blanket" rule reqmnng intermediate appellate reVlew of the convictions of all involuntarily deported defendants, regardless of whether such review impacted the deportation status of the particular defendant (AA.42-45). 11 The Decision of the Appellate Te1m In a decision and order dated August 10, 2015, the Appellate Tenn granted the People's motion to dismiss the appeal "without prejudice to appellant moving to reinstate the appeal should he return to this court's jurisdiction." People v. Morales, 2015 N.Y. Slip Op. 82166(0) (App. Term, 9th and 10th Jud. Dists., August 10, 2015). The Appellate Term distinguished this case from Ventura by basing its order of dismissal "on the grounds, among others, that appellant has been deported and is no longer available to obey the mandate of the court [citations omitted], and that appellant has failed to have any contact with appellate counsel." Id. Judge Pigott's Order Granting Leave to Appeal to This Court By order dated November 31, 2015, the Honorable Eugene F. Pigott, Jr. , granted defendant's application for leave to appeal to this Court pursuant to C.P.L. § 460.20(2) (a)(i). People v. Morales, 26 N.Y.3d 1041 (2015).4 4 According to defendant's attorney, " [s]ince December 11, 2015, appellate counsel has been in communication with appellant, via both email and telephone calls," who reputedly has "expressed" his "continued interest" in the appeal of his convictions (Defendant's Brief at 3). No reasons are provided for defendant's four-year disappearance or for his complete lack of communication and contact with his attorney or with any other person associated with defendant's appeal, despite his access to telephone and email service. 12 ARGUMENT The Appellate Term's Dismissal Of Defendant's Appeal Was A Proper Exercise Of Discretion In Light Of Defendant's Voluntary, Protracted Disappearance Following His Deportation, And Because Defendant's Conviction Did Not Serve As The Basis For Deportation And Defendant Will Not Be Available To Obey The Mandate Of The Court (answering defendant's brief). The Appellate Term properly exercised its discretion in dismissing defendant's appeal without prejudice, because: (1) defendant's disappearance and his utter lack of communication with his assigned appellate counsel prior to the dismissal of his appeal constituted a failure of action by defendant with respect to the continued prosecution -- and, indeed, an abandonment -- of the appeal; (2) defendant's deportation was neither based upon, nor caused by, his conviction of a non-deportable offense in this case, reversal of which would have no effect on defendant's immigration status, chances for readmission, or availability to obey the mandate of the court in future legal proceedings; and (3) the Appellate Term, unlike the Appellate Division in People v. Ventura, 17 N .Y.3d 675 (2011), dismissed defendant's appeal without prejudice, thereby leaving him an open avenue to relief should he somehow manage to reappear in New York and seek review of his judgment of conviction (RA.S-11). The Appellate Term correctly concluded that this Court's 1uling in Ventura did not preclude dismissal of defendant's appeal as either moot, defective, irregular, or involving a failure of action by defendant to prosecute his appeal. Accordingly, the dismissal order of the Appellate Term should be affinned. The scope of this Court's power to review an order of an intermediate appellate court dismissing an appeal is limited by statute to a determination of whether the 13 dismissal either "was invalid as a matter of law" or "constituted an abuse of discretion." C.P.L. § 470.60(3). Here, the order of the Appellate Tetm dismissing the appeal was neither invalid as a matter of law nor an abuse of discretion. Criminal Procedure Law section 470.60(1) explicitly authorizes appellate courts to dismiss an appeal based upon: the ground of mootness . . . failure of timely prosecution or perfection thereof, or other substantial defect, irregularity or failure of action fry the appellant with respect to the proseattion or peifection of such appeal C.P.L. § 470.60(1) (emphasis added). "Basically, an appellate court may exercise broad discretion to dismiss an appeal, whether on a party's motion or sua sponte, for any reason that will cause or has caused substantial interference with the appellate process." See Peter Preiser, Practice Commentaries, McKinnry's Cons. Laws of NY., Book 11A, C.P.L. § 470.60, at 352 (2009). Here, the Appellate Term acted well within its discretion by dismissing defendant's appeal "without prejudice to appellant moving to reinstate tl1e appeal should he return to this court's jurisdiction" because, among other reasons, "appellant has been deported and is no longer available to obey the mandate of the court . .. and . . . appellant has failed to have any contact with appellate counsel" (AA.2). People v. Morales, 2015 N.Y. Slip Op. 82166(U) (App. Term, 9th and 10thJud. Dists. , August 10, 2015). The Appellate Term correctly construed defendant's disappearance during the three and one-half years preceding the filing of his appellate brief by his attorney -- and his refusal to contact or communicate with his attorney -- as a failure of action by 14 the defendant with respect to the prosecution or perfection of such appeal, and properly based its order of dismissal of defendant's appeal upon that failure of action. See C.P.L. § 470.60(1). Contraty to defendant's erroneous argument, this Court in Ventura did not create a rigid "blanket rule" that stripped intetmediate appellate courts of their statutorily- conferred discretion to dismiss appeals or require them to engage in rote detetmination of all appeals of all involuntarily-deported defendants, regardless of whether the appeal is moot, defective, irregular, or involved a clear failure of action by the defendant to prosecute or perfect the appeal (see Defendant's Brief at 10-13). In the first place, the Court explicitly reaffirmed "the broad authority of the intermediate appellate courts to dismiss pending appeals" in Ventura. See Ventura, 17 N.Y.3d at 681. Moreover, although it is true that Ventura eliminated the routine practice of intermediate appellate courts relying exclusively upon the deported status of a defendant as the sole justification for characterizing and dismissing an appeal as "moot," "defective," or "irregular," it is also clear that tl1e Court did not intend to veer to the other extreme by perversely proposing that a defendant's deported status protected from dismissal -- or somehow validated -- an appeal that otherwise would have been deemed defective, moot, or irregular. Accordingly, the Appellate Term's decision to dismiss this deported defendant's appeal as either moot, defective, or involving a failure of action by defendant to prosecute his appeal was a proper exercise of the court's discretion, and should be affirmed. 15 A. Dismissal of Defendant's Appeal Was Appropriate Because Defendant's Voluntary Disappearance Following His Deportation Constituted an Abandonment of the Appeal, or, at a Minimum, a Failure on Defendant's Part to Prosecute and Perfect the Appeal, and, Therefore, a Determination of the Merits of D efendant's Appeal Would Have Been an Improvident, Wasteful Allocation of Finite Judicial Resources. Moreover, Counsel's Duty to Evaluate the Merits of Proceeding with the Appeal of a Deported Defendant Who Has Disappeared Does Not Place Counsel in a Position Adversarial to a Deported Defendant (answering Points A, B and D of defendant's Argument). In its majority opinion in Ventura, the Court conferred upon involuntarily- deported defendants a fundamental right "to seek" intermediate appellate review of their convictions, rather than an absolute right "of appellate review," whether such review was sought or not. As the Court stated: [a] s a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appellate courts as "the State has provided an absolute right to seek review in criminal prosecutions" [citations omitted]. T/entura, 17 N.Y.3d at 682 (emphasis added). The Court took note of the specific efforts made by each defendant in Ventura -- Ventura and Gardner -- to seek appellate revtew of his conviction and to avail himself of the intermediate appellate court, efforts that were ultimately fmstrated by subsequent deportation. Each defendant had perfected his appeal, had submitted an appellate brief to the intermediate appellate court, and had an oral argument date calendared, prior to being deported. Ventura, 17 N.Y.3d at 678-79. Given the clear, compelling attempts by each of the defendants in Ventura to seek intermediate appellate review of their convictions, the 16 Court deemed it a matter of "fundamental fairness" to afford the defendants the intermediate appellate review that they had sought. Id. The Court also appears to have attached considerable significance to the apparently unfair timing of each defendant's deportation -- after effort, time, and resources had been expended preparing and filing each defendant's appeal -- and by the apparent disregard of state judicial authority exhibited by federal immigration authorities in carrying out tl1e deportation orders after oral arguments had already been calendared in each case. See Ventura, 17 N .Y.3d at 678-79, 681. In a similar vein, this Court in a more recent case refused to dismiss a deported defendant's appeal, and insisted upon determining the merits of the appeal because "this [deportation] occurred after a Judge of our Court granted [defendant] leave to appeal and despite apparent assurances that removal would not occur while tl1e appeal was pending." People v. Andrews, 23 N.Y.3d 605, 620 n. 1 (2014).5 In contrast to the defendants in Ventura, defendant in the instant case neither "sought" to appeal his judgment of conviction nor did he attempt to "avail himself' of his right to intermediate appellate court review of his convictions during the entire 5 To the extent that the statement in Ventura-- that " [a]s a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appellate courts" -- goes beyond the facts in Ventura, that language is dictum, because such language was not necessary to the resolution of the issue presented in the case. See People v. Suber, 19 N.Y.3d 247, 253-54 (2012) (dicta is language in a court's opinion "that was not essential to [the court's] holdings and therefore do[es] not bind subsequent cases"); People v. Bourne, 139 A.D.2d 210, 216 (1st Dept. 1988) ("A case . . . is precedent only as to those questions presented, considered and squarely decided" [citation omitted]); see also People ?J. DeLee, 24 N.Y.3d 603, 609-10 (2014) (rejecting dictum regarding the remedy for a repugnant verdict). 17 three-and-one-half-year time period that had elapsed between his deportation to Honduras and the date on which counsel filed an appellate brief on defendant's behalf in the Appellate Tenn. Defendant disappeared immediately after his deportation to Honduras in November 2011, and thereafter failed to initiate or maintain contact with his appellate attorney or with anyone else associated with this appeal in the appellate court system. During the entirety of tlus time period, defendant's existence and whereabouts remained unknown. It was not even known whether defendant was still alive at the time that appellate counsel decided to prepare defendant's appellate brief and to perfect defendant's appeal. Defendant's existence and whereabouts continued to remain unknown up to, and after, the Appellate Tenn's dismissal of defendant's appeal based upon lus failure to have any contact with his attorney prior to the perfection of Ius appeal. Defendant's lone signature on the financial affidavit in support of lus motion for poor person relief -- which was executed prior to his deportation and disappearance, and which does not even contain the word "appeal" -- did not, contrary to his claim on appeal, constitute an adequate display of interest and a sufficient expenditure of effort in the pursuit of the perfection of his appeal (see Defendant's Brief at 23). Even if one were to accept the validity of this argument in regard to the taking of defendant's appeal upon the initial filing of a notice of appeal by his appointed counsel, defendant's disappearance and silence during the years 18 following his deportation signified a clear loss of interest by defendant in the continued pursuit of the perfection of his appeal. See C.P.L. §§ 460.10 and 460.70. As this Court has noted, " [t]he right to an appeal is a statutory right that must be affirmatively exercised and timely asserted." People v. Sj1vi//e, 15 N.Y.3d 391, 397 (2010) (quoting People v. West, 100 N .Y.2d 23, 26 [2003]). A defendant's disappearance and an attorney's inability to locate or communicate with a defendant has repeatedly been interpreted by appellate courts as an indication of a defendant's lack of interest in pursuing his or her appeal and as an abandonment of the appeal. See e.g., People v. Cu//um, 170 A.D.2d 524 (2d Dept. 1991) (dismissing appeal as abandoned where all efforts by assigned appellate counsel to locate and communicate with the defendant had been unsuccessful, thereby demonstrating the defendant's lack of interest in pursui11g his appeal); People v. Jinks, 140 A.D.2d 371 (2d Dept. 1988) (dismissing appeal where the defendant, who had been provided with the name and address of his assigned attorney, had not contacted his attorney in three years, demonstrating the defendant's lack of interest in the appeal). Another, more serious, consequence resulting from the inability of appellate counsel to locate or contact a defendant is that the attorney is left without any authority to prosecute the appeal on behalf of the vanished defendant. See People v. Watson, 77 N.Y.2d 857 (1991) (dismissing appeal on the ground that assigned appellate counsel was never able to locate or contact the defenda11t and, thus, appellate counsel was without authority to prosecute the appeal on the defendant's behalf) ; People v. Lewis, 31 Misc. 3d 149(A) (App. Term, 9th & 10th 19 Jud. Dists., 2011) (dismissing appeal on the ground that counsel had not been able to contact the defendant regarding the appeal, letters mailed to the defendant were returned as "undeliverable," and, thus, counsel was without authority to prosecute the appeal on the defendant's behalf); People v. Lamb, 7 Misc. 3d 138(A) (App. Term, 9th & lOth Jud. Dists. , 2005) (dismissing appeal because appellate counsel had not been able to locate or contact the defendant, and, thus, was without authority to prosecute the appeal on his behalf). Virtually all of the attorneys in the above-cited cases were able to perform a review of the circumstances surrounding the disappearance of, and lack of communication with, each of their clients, and make a proper evaluation regarding the advisability of a decision to perfect the appeal. Such review and evaluation of the appeals of the above-cited criminal defendants' cases neither "create[d] havoc for appellate practitioners" in those cases (Defendant's Brief at 13), nor placed them in "an adversarial position with the clients for which they have promised zealous advocacy" (Defendant's Brief at 18). Such evaluation was necessary in order to avoid the improvident and wasteful allocation of finite resources to the perfection -- and the determination of the merits -- of each criminal defendant's appeal. In the instant case, defendant's disappearance after his deportation for three and one-half years -- and the ensuing uncertainty regarding his existence and whereabouts -- should have prompted appellate counsel to entertain the possibility that defendant had no interest in pursuing his appeal, that defendant had in fact 20 abandoned his appeal, and that counsel was no longer authorized to prosecute or perfect defendant's appeal.6 Although defendant's deportation was involuntary, his decision to avoid contact with his appellate attorney was not. Defendant could have telephoned, emailed, texted or written his appellate counsel at any juncture during the three and one-half years that elapsed from the date of his deportation to the date when his appellate brief was filed, in order to confum that he still existed, to provide contact information, to confirm that he wished to proceed with his appeal, or to provide input into the selection of issues to be raised on appeal. Indeed, the fact that defendant and his attorney have recently re-established contact and communicated via telephone and email (Defendant's Brief at 3) further 6 This Court has observed that " [a]ppellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument" (People tJ. StultiJ 2 N.Y.3d 277, 285 [2004]) . It is doubtful, therefore, that the Court would be comfortable sanctioning as "meaningful" the essentially blind advocacy that is at issue here. That is to say, to provide "meaningful representation" to her client, an appellate counsel should be required, at least once before any appellate brief is filed by her, to have some minimal contact with her client to ascertain that he actually desires to go forward with the appeal from his judgment and, if so, to deterrnine which claims, if any, he wishes to raise or forego, or even which convictions -- whether following a plea or trial, or both as in this case -- the client wishes to challenge on appeal. See Rule 1.4 ("Communication") of the Rules of Professional Conduct (22 N.Y.C.R.R. 1200.0) (lawyer " shall" reasonably consult with client about means to accomplish client's objectives and shall keep client informed of the status of the matter); see also Preamble to Rules of Professional Conduct (22 N.Y.C.R.R. 1200.0) at [2] ("[t]he touchstone of the client-lawyer relationship is the lawyer's obligation to assert the client's position"). After all, this Court would never endorse the practice of a trial attorney who, for instance, rejected plea offers and proceeded to trial without ever so much as communicating with, much less soliciting the wishes of, a client facing criminal charges. See People v. Femande::v 5 N.Y.3d 813, 814 (2005) (holding that the defendant who had raised a claim of ineffective assistance of trial counsel "had the burden to demonstrate that a plea offer was made, that defense t"Oltllsel Jailed to inform him of that ojfet; and that he would have been willing to accept the offer" [emphasis added, internal quotation marks and citation omitted]). 21 proved that, although defendant had possessed the means to contact his attorney during the three-and-one-half year time period preceding the perfection of his appeal, he voluntarily chose not to do so, thereby demonstrating a lack of interest in pursuing his appeal and constituting an abandonment of his appeal. See People v. M alloy, 37 Misc. 3d 131(A)(App. Term, 2d, 11th & 13th Jud. Dists. , 2012)(disrnissing appeal as abandoned where the defendant did not respond to appellate counsel's letters, thereby demonstrating a lack of interest in his appeal); People v. Grant, 31 Misc. 3d 145(A) (App. Tenn, 2d, 11th & 13th Jud. Dists., 2011)(disrnissing appeal as abandoned where the defendant did not respond to appellate counsel's letters, thereby demonstrating a lack of interest in his appeal, and counsel was not authorized to seek withdrawal of a guilty plea on the defendant's behal£).7 Appellate counsel in this case, however, neither made a determination regarding the advisability of proceeding with defendant's appeal nor moved the intermediate appellate court to be relieved from assignment to defendant's appeal. Instead, counsel 7 D efendant cites three cases to support his argument that appellate courts should not dismiss as moot the appeals of deported defendants "whose whereabouts were unknown" and "who had failed to communicate with appellate counsel" (Defendant's Brief at 23-24). However, one of the cited cases --Hernandez v. Khahaifa, 2013 WL 3984958 (S.D .N.Y. July 13, 2013) -- contains no language at all to suggest that the whereabouts of the defendant in that case was unknown. Moreover, the only reference to a possibility that the defendant's whereabouts was unknown in the second cited case -- Hqywood v. Bureau of Immigration & Customs Enforcement, 3 72 Fed. Appx. 122 (2d Cit. 2010) -- was actually a rejection of such a scenario by the court, which characterized as "speculative" the government's contention that defendant would be unable to learn of a decision in his favor. In the third case, Matter of Edzvardo V., 70 Cal. App. 4th 591 (Ct. App. 1999), both parties had consented to a determination of the merits of an appeal of a deported minor, which is not the situation in this case. Defendant's reliance on all three cases, therefore, is misplaced. 22 prepared and filed a ninety-one page brief containing numerous appellate claims on defendant's behalf, notwithstanding defendant's disappearance years beforehand and notwithstanding the ongoing uncertainty regarding defendant's very existence or whereabouts. According to appellate counsel, "judicial economy" was best served by counsel's decision to file defendant's brief, and compelled a rote, pointless determination of the merits of the many appellate claims raised in the brief by the Appellate Tenn (see Defendant's Brief at 28-29). The opposite, however, holds true: it would have been a far more prudent allocation of finite judicial resources to initially address the discreet issue of whether to dismiss defendant's appeal based upon his disappearance and his ( abandonment of the appeal, and only thereafter determine the merits of defendant's appellate claims in the event the court rules otherwise. By disregarding this obvious truth, counsel cannot now be heard to complain that the dismissal of defendant's appeal "illustrate[d] a waste of judicial resources, and a waste of time and resources of appellate counsel" (Defendant's Brief at 29). In sum, the dismissal of defendant's appeal by the Appellate Tetro on the ground that defendant has had no contact with his attorney and has not otherwise demonstrated any interest in seeking appellate review was proper. Under the circumstances, tl1e dismissal was, indeed, a provident exercise of tl1e intermediate appellate court's discretion under C.P.L. § 460.70(1). The fact that defendant has purportedly re-surfaced recently and expressed a "continued interest" in his dismissed appeal in response to an 23 inquiry of counsel-- four years after his deportation and long after his abandonment of his appeal -- is irrelevant to the propriety of the Appellate Term's decision some four months earlier when faced with defendant's clear lack of interest in seeking intermediate appellate review of his conviction. The Appellate Term's order of dismissal should be affirmed. B. Dismissal of Defendant's Appeal Was Appropriate Because Defendant's Deportation Was Not Caused by His Conviction in This Case, and Defendant Has Neither Claimed Nor Demonstrated How a Reversal of His Conviction Would Impact His Chances for Readmission or His Ability to Participate in Future Legal Proceedings. Moreover, Counsel's Duty to Evaluate the Merits and Consequences of a Defendant's Appeal Prior to Perfecting the Appeal Does Not Adversely Affect Counsel's Ability to Act as a Zealous Advocate for a Deported Defendant (answering Points A and C of defendant's Argument). The Appellate Tenn properly exercised its discretion in dismissing defendant's appeal because defendant's deportation was clearly not based upon his conviction of the non-depmtable offenses in this case, but instead was based on his unlawful entry into the United States after having been previously deported in 2005 for unlawfully entering the United States in 1995 and failing to appear at his deportation hearing thereafter. Consequently, it is dubious whetl1er reversal or even dismissal of these convictions would have an effect on defendant's potential for readmission into the United States. Moreover, reversal of defendant's convictions on the basis of any of the five claims o f 24 trial court error raised by defendant would require defendant's continued participation in future legal proceedings upon reversal and remand.8 "'[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.'" People v. Diaz, 7 N.Y.3d 831, 831-32 (2006) (quoting People v. Genet, 59 N.Y. 80, 81 [1874]). T hus, in Diaz, where the defendant had been involuntarily deported, this Court, like the Appellate Tenn in the instant case, dismissed the defendant's appeal "without prejudice to defendant's making a motion to reinstate the appeal should he return to this Court's jurisdiction." Id. at 832. The Court reasoned that although the defendant's deportation had been involuntary, he was "nevertheless unavailable to obey the mandate of this Court." Id.; see also People v. Bacon, 46 N .Y.2d 1073 (1979); People v. Pamakiidis, 38 N.Y.2d 1005 (1976); cf. People v. Del Rio, 14 N .Y.2d 165, 169 (1964) (where defendant consented to voluntary deportation, d1is Court stated that "in the defendant's absence from the jurisdiction the appeal will not be heard since '[a] hearing would avail nothing' because '[i]f a new trial should be ordered, he is not here to answer further"' [citation omitted]). 8 As noted previously (supra at 8-9), the claims of trial error were: (1) the trial court improperly prevented defense counsel from calling an expert witness to testify about the purported shortcomings of the Intoxilyzer SOOOEN that was used in this case; (2) the trial court made erroneous Batson rulings; (3) the trial court improperly limited defense counsel's cross-examination of the People's witnesses; ( 4) the trial court made erroneous San do val rulings; and (5) the trial comt improperly permitted the prosecutor to characterize defendant's repeated insufficient exhalations into the Intoxilyzer as "refusals" (AA.47-140). 25 In this case, defendant's deportation was unrelated to his conVlctlon for two reasons. First, the ground for defendant's deportation was that defendant had unlawfully entered the United States after having been previously deported for unlawfully enteting the United States. In a Notice of Intent/ Decision to Reinstate a Prior Order to Appear, I.C.E. charged that, pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (8 U.S.C. § 1326[a][1] and [2]) , defendant, who was a citizen of Honduras and not a citizen of the United States, was subject to removal on the ground that he had illegally entered the United States at an unknown place and at an unknown date after having already been "removed on June 22, 2005, pursuant to an order of deportation/ exclusion/ removal" (AA.26). Thus, it is clear that defendant's deportation was based on his repeated, unlawful entries into the United States, after having been previously deported, and not on his conviction in this case. 9 Second, the offenses of which defendant was convicted -- driving while intoxicated (V.T.L. § 1192[2] and [3]) and certain traffic infractions -- are not deportable offenses. Pursuant to 8 U.S. C. § 1182, a person is ineligible for visas or admission into the United States if that person has been convicted of certain crimes. Driving while intoxicated is not a ctime enumerated in that statute. And while 8 U.S.C. § 1182 states that a person is deportable if convicted of a "crime involving 9 D efendant's lengthy arguments regarding the difficulties experienced by appellate attomeys in trying to determine a defendant's deportation status, or the basis upon which a defendant has been deported (Defendant's Brief at 15-18), bear no relevance to the facts of this case, where there was a complete lack of ambiguity regarding d1e basis for, and the occurrence of, defendant's deportation. 26 moral turpitude" or of an "aggravated felony," the offenses defined by New York's driving while intoxicated statute do not fall within either of those categories. See Ruiz- Lopez v. Holder, 682 F .3d 513, 519 (6th Cir. 2012) (the Board of Immigration Appeals has determined that a simple driving under the influence offense is not a crime involving moral turpitude); Marmolf!Jo-Campos v. Holder, 558 F.3d 903, 913 (9th Cir. 2009) ("The BIA [Board of Immigration Appeals] has never held that a simple [driving under the influence] offense is a crime involving moral tmpitude, a fact it attributes to 'a long historical acceptance"' [quoting In re Lopez-Meza, 22 I. & N. Dec. 1188,1194 (B.I.A. 1999)]);Murillo-Salmeron v. I.N.S., 327 F.3d 898,902 (9th Cir. 2003) ("The BIA has unequivocally determined, however, that simple DUI convictions, even if repeated, are not crimes of moral turpitude"); see also Leocal v. Ashcrrift, 543 U.S. 1 (2004) (conviction for driving under the influence of alcohol and causing serious bodily injury in an accident was not an aggravated felony for deportation purposes because it was not an intentional crime); Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001) (New York V.T.L. § 1192[3] does not constitute an aggravated felony for deportation purposes). The fact that, as in this case, a conviction does not have deportation ramifications is a critical factor for an intermediate appellate court to consider in deciding whether to dismiss an appeal. In such a case, because the conviction has no deportation ramifications, there is no deportation-related reason for the defendant "to avail [himselfj 27 of the appellate process." Cj Ventura, 17 N.Y.3d at 680 ("in light of the tremendous ramifications of deportation," defendants in that case, and other similarly situated defendants, "ha[d] a greater need to avail themselves of the appellate process"). Rather, the defendant convicted of non-deportation-related crimes has become unavailable for a reason muelated to the conviction; in this case, defendant's unavailability was a consequence of his voluntary misconduct of repeatedly entering the United States unlawfully. See People v. Rryes, 292 A.D .2d 271 (1st Dept. 2002) ("regardless of whether defendant was 'voluntarily' or 'involuntarily' deported, it is clear that he has become unavailable as a consequence of his voluntary misconduct, which consisted of remaining in the United States for four years on a three-month visa"). The Court should also reject defendant's argument that an appellate attorney be excused from ascertaining the reason for a client's deportation on the ground that such determination involves "delving into matters dehors the record, the very antithesis of what a record-based appeal should be" (Defendant's Brief at 18). In the first place, appellate courts are routinely obliged to take into account matters outside the record in order to determine whether an appeal should be dismissed on the basis of death, disappearance, or deportation of the defendant. Moreover, the Criminal Procedure Law specifically authorizes dismissal of an appeal upon motion of the respondent or of the appellate court. See C.P.L. § 470.60(1), (2). Because papers in support of or in opposition to a motion to dismiss an appeal may include sworn statements setting forth 28 factual allegations regarding matter outside the record on appeal, the review by the appellate court of the issues regarding the cause of the defendant's deportation is not, and cannot be, "completely record-based" (Defendant's Brief at 22). See e.g.) People v. Pere~ 23 N.Y.3d 89, 102 (2014)(case remitted to the Appellate Division to appoint counsel and to consider counsel's submissions to determine whether the defendant's appeal should be dismissed). Furthermore, as the Appellate Term concluded, if defendant's appeal were successful -- at least in regard to the five claims of trial court error that he had raised -- then his continued legal participation would be necessary but impossible, as defendant's deportation resulted in defendant "no longer [being] available to obey the mandate of the court [citations omitted]" (AA.2). This Court's decision in Ventura does not mandate that defendant's appeal be heard. In Ventura, this Court held that the Appellate Division abused its discretion when it dismissed the appeals of two defendants -- Ventura and Gardner -- who had been involuntarily deported. While this Court stated in Ventura that '"as a matter of fundamental fairness , all criminal defendants shall be permitted to avail themselves of intermediate appellate courts," taken in context, the holding in Ventura concerned defendants whose appeals, if successful, would not result in further proceedings, and this Court's rationale in Ventura assumed that the convictions that were the subject of the appeals carried deportation ramifications. 29 T/ entura is distinguishable from tlus case for three reasons. First, unlike in T/ entura, if defendant in this case were successful on any of the five claims of trial error on appeal, then his legal participation would be required for further proceedings. Second, in contrast to Ventura, the record in this case shows that the conviction did not have deportation ramifications. Tlurd, the Appellate Term's order dismissing defendant's appeal in this case was "without prejudice to appellant moving to reinstate the appeal should he return to tlus court's jurisdiction," whereas the Appellate Division dismissed the appeals of the defendants in Ventura with prejudice, leaving the Ventura defendants without appellate recourse in the event tl1at either of them returned to tl1e jurisdiction of this State's courts. On appeal, defendant Ventura claimed only that the trial evidence was legally insufficient to prove his guilt and that the verdict was against the weight of the evidence. Similarly, defendant Gardner raised only a claim that the trial evidence was legally insufficient See Ventura, 17 N.Y.3d at 678-79. This Court noted that, under those circumstances, " tl1e perceived inability to obey the mandate of the court is not implicated here," and this Court apparently reached that conclusion because "disposition of the discrete appellate issues would result in either an affirmance or ouu-ight dismissal of the convictions; neither outcome would require the continued legal participation of defendants." Id. at 682. In contrast to Ventura, defendant in tlus case raised many claims of trial court error on appeal which, if successful, would require his continued participation upon 30 remittal for further proceedings. 10 But defendant cannot meaningfully participate in a retrial of his criminal case when he is not permitted to enter the country lawfully to attend it. l\!Ioreover, as discussed previously (supra at 16-19), this defendant -- unlike the defendants in Ventura -- indicated his clear lack of desire to meaningfully participate in future legal proceedings by disappearing for four years and by refraining from contacting his attorney during the entirety of that time period. The second reason why Ventura is distinguishable from this case 1s that, in Ventura, this Court apparently proceeded on the assumption that both defendants' convictions had deportation ramifications. This Court stated that the Ventura defendants, and other similarly situated defendants, "have a greater need to avail themselves of the appellate process in light o f tl1e tremendous ramifications of deportation." Ventura, 17 N.Y.3d at 680. T hat rationale assumes that there was a connection between the defendants' convictions and their deportations. That assumption 1s not applicable to this case, where defendant's deportation was not related to his conviction, particularly because defendant's conviction was for a non- deportable offense. In Ventura, stating that "the perceived inability to obey the mandate of the court is not implicated here," the Court then observed that "in other jurisdictions, 10 The P eople acknowledge that reversal of defendant's conviction and dismissal of the accusatory instrument based on defendant's appellate claims regarding the legal sufficiency and weight of the trial evidence would no t necessarily compel his presence in future legal proceedings. 31 defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court," and the Court cited People v. Puluc-S£que, 182 Cal. App. 4th 894, 899, 106 Cal. Rptr. 3d 365, 369 (Ct. App. 2010), in which the California intermediate appellate court allowed the defendant's appeal to go forward even though the defendant had been deported. Ventura, 17 N.Y.3d at 682. However, Puluc-Sique is distinguishable from this case for the same reasons that T/ entura is distinguishable from this case. In Puluc-Sique, unlike tlus case, the record showed that the underlying conviction had deportation ramifications, because the trial court had "advised defendant he would be deported as a consequence of his no contest plea." Puluc-Sique, 182 Cal. App. 4th at 900 n.2, 106 Cal. Rptr. 3d at 370 n.2. "[I]t is well settled that the language of any opinion must be confined to the facts before the court." People v. Anderson, 66 N.Y.2d 529, 535-36 (1985). Accordingly, the decision of this Court in Ventura should be confmed to the facts of tlut case, in which, unlike this case, the defendants' continued legal participation was not required for further proceedings, and it was apparently assumed that the defendants' convictions carried deportation ramifications. See People v. Cooper, 98 N.Y.2d 541, 546 (2002) (a statement by the Court in an earlier decision, which statement defendant "[s]tripp[ed] ... of its context," was not the holding of that decision). 32 Significantly, defendant does not assert that he would be eligible for admission to the United States if his conviction were reversed. 11 Defendant argues only that "a successful appeal could impact his readmissibility chances" (Defendant's Brief at 15). Defendant's speculative assertion completely ignores the fact that defendant's conviction was for a non-deportable offense, which could not have served as the basis for defendant's deportation. Permission to seek a non-immigrant visa prior to d1e expiration of d1e ten-year bar is a matter within the sole discretion of the Attorney General (see 8 U.S. C. § 1182[a][9][A][i.i.i], [d][5][A]), and defendant has provided no assurance d1at d1e A ttorney General will grant relief in dus particular case, or that such relief is routinely granted. See Barrera-Echavarria v. Riso11, 44 F.3d 1441, 1446 (9th Cir. 1995) (Congress intended that immigration parole within the meaning of 8 U.S. C. § 1182[d][5] [A]) "be the exception and not the rule"). Defendant's speculation that he might be allowed to re- enter d1e United States at some future unknown date, ifhe receives special consideration from the Attorney General, is insufficient to overcome the bar to having lus appeal heard, which is that, for a reason other than d1e conviction in dlls case, he is not present to obey d1e mandate of the court. Indeed, defendant's prospects of obtaining a waiver to re-enter the country on a non-immigrant basis are virtually nil, due to lus brazen history of repeated imnugration violations, lus failure to appear at his deportation hearing in 1995, his first deportation in 2005, and his subsequent, unlawful presence in the country 11 "Inadmissible" means "ineligible to receive visas and ineligible to be admitted to the United States." See 8 U.S.C. § 1182(a). 33 afterward, which demonstrated a willful disregard -- or, even, contempt -- for the mechanisms of legal immigration procedures and for the judicial process. None of the cases cited by defendant in support of his argument regarding the impact of a reversal of his conviction on his eligibility for readmission involved defendants who were convicted only of non-deportt'lble offenses (see Defendant's Brief at 13-15, 24). Even though the convictions of some of those defendants did not, in fact, serve as the basis for the deportation, the convictions of the defendants in all of the cited cases could have served as the basis for their deportations, being either crimes of moral turpitude or aggravated felonies, and reversal of such convictions could conceivably have had an impact on each defendant's potential for readmission on a non- immigrant basis. In this case, by contrast, defendant's convictions were not the underlying basis for his deportation and -- unlike his history of illegal entry -- were not convictions that render him inadmissible. See 8 U.S.C. § 1182(a)(2). Indeed, defendant's convictions were entirely unrelated to a deportation that was ordered and carried out years before his arrest for drunk-driving in the instant case. Thus, for example, defendant's reliance on United States v. Hamdi, 432 F.3d 115 (2d Cir. 2005), is misplaced (see Defendant's Brief at 13-14). Hamdi, unlike this case, addressed the issue of whether the appeal presented "a live case or controversy within the meaning o f Article III of the Constitution" or was moot. 432 F.3d at 118. In Hamdi, the United States Court of Appeals for the Second Circuit detennined that even though the defendant had completed his sentence and had been deported, the case was not 34 moot because if the defendant prevailed on his "challenge to the length of his completed sentence," he could derive a theoretical benefit namely, the Attorney General might grant him a non-immigrant VISa. In contrast, the issue in this case is whether a procedural state statute permits dismissal of an appeal when a defendant is not available to obey the mandate of the comt. In this case, unlike in Hamdi, the issue of mootness is implicated.12 Under these circmnstances, defendant's appeal should not be heard. If the defendant were to prevail on his appeal on any of the five claims of trial court error bifore the Attorney General had made a detennination on an application for a non-immigrant visa, and if that application were subsequently denied, then the People would be in tl1e untenable position of having to try the case while defendant remained unavailable. And defendant has not shown that it is at all Wcely that such an application would be granted. Cj United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007) ("[b]ecause the defendant has been deported . . . and is legally unable, without permission of tl1e Attorney General, to re-enter the United States to be present for a resentencing proceeding as required by [Fed. R. Crim. P. 43], there is no relief we are able to grant him and his appeal is moot") . The third important distinction existing between Ventura and tlus case is that, in tlus case, the Appellate Term's dismissal of defendant's appeal was "witl1out prejudice to 12 It is for this reason that defendant's reliance on United StateJ tJ. AJbraj, 628 F.3d 813 (6th Cir. 2011) (Jee Defendant's Brief at 13) also is misplaced. 35 appellant moving to reinstate the appeal should he return to this court's jU1i.sdiction," (AA.2), whereas the Appellate Division in Ventura dismissed the appeals of d1e defendants with prf!Judice, leaving the T/ entura defendants without appellate recourse in d1e event that either of them returned to the jU1i.sdiction of dus State's courts (RA.8-11). People v. Gardner, 2010 N.Y. Slip Op. 66809(L~ (2d Dept. March 26, 2010); People v. Ventura, 2009 N.Y. Slip Op. 82726(U) (2d Dept. September 10, 2009). Thus, in this case, in the wilikely event that defendant were to obtain relief from the Attorney General, and, consequendy, were to be present in the jurisdiction, d1en, at that time, he could move to reinstate the appeal. Under those circumstances, if the defendant were d1en successful on his appeal-- and assuming d1at the permission of the Attorney General for the defendant to be present in the country would encompass a reasonable amount of time to permit a disposition in dus case, either by trial or by a guilty plea -- then defendant would in fact be available to obey the mandate of the court. Defendant also argues d1at dismissal of his appeal is unwarranted because defendant would waive his appearance at future proceedings in the event of a remand, pursuant to C.P.L. § 340.50(2) (Defendant's Brief at 33). That argmnent, too, is meridess. "TI]he whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of ilie court, in his person."' People v. Dia~ 7 N.Y.3d 831, 831-32 (2006) (quoting People v. Genet, 59 N.Y. 80, 81 [1874]) . In addition, the Criminal Procedure Law mandates that, in general, "a defendant must be 36 personally present dmmg the trial [of an infonnation]."13 C.P.L. § 340.50(1). If the defendant means that he would waive his presence at trial-- although there is, of course, no assurance that he would in fact be willing to do so -- he has not proposed a means by which a valid waiver could be obtained while he is outside the United States. In sum, the Appellate Term's dismissal of defendant's appeal was not an abuse of discretion. Defendant was deported on a basis other than the conviction in this case, further proceedings would be required if he were successful on appeal, and his continued legal participation in those proceedings would not be possible because he is unavailable. Accordingly, the Appellate Tetm's order dismissing defendant's appeal without prejudice should be affumed. 13 With respect to the trial of an information, upon the filing of a specified "written and subscribed statement by the defendant," the court may dispense with d1e requirement d1at a defendant be personally present at trial. C.P.L. § 340.50(2). However, d1e court may do so only in d1e absence of an objection by the People. Id. 37 CONCLUSION The Appellate Tenn's Order Dismissing Defendant's Appeal Should Be Affumed. Dated: Ivlineola, New York March 16, 2016 Tammy J. Smiley Jason R. Richards Adam S. Charnoff Assistant District Attorneys Of Counsel Respectfully submitted, :NlADELINE SIN GAS District Attorney, Nassau County Attorney for Respondmt 262 Old Country Road Mineola, New York 11501 (516) 571-3800 By: Assistant District Attorney 38 STATE OF NEW YORK) ) ss.: COUNTY OF NASSAU ) MIRIAM MANNO, being duly sworn, deposes and says that: Deponent is not a party to the action and is over 18 years of age. On March 16, 2016, deponent served three copies of the within RESPON D ENT'S BRIEF and separately bound SUPPLEMENTARY APPENDIX, upon DORJ COHEN, ESQ., attorney for defendant-appellant, CRISTIAN MORALES, by depositing copoies of the same enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States post office department within the State of New York, directed to said attorney for the within named defendant-appellant at LEGAL AID SOCIETY OF NASSAU COUNTY, 40 MAIN STREET, 3R° FLOOR, HEMPSTEAD, NEW YORK 11550, that being the address within the state designated by him/ her for that purpose upon the preceding papers in this action, or the place where he/ she kept an office, between which places there then was and now is a regular communication by mail. Sworn to before me this 16th day of March, 2016 MARIE L MURPHY . NOTARY PUBUC STATE OF Nf'N YORK NASSAU COUNH UC. #01M COMM. EXP. MIRIAM MANNO