The People, Respondent,v.Cristian Morales, Appellant.BriefN.Y.November 17, 2016To he argued by: DORICOHEN Argument Time Requested: 15 Minutes First District Court, Nassau County Index No. 2010NA032763 ~ourt of ~ppeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CRISTIAN MORALES, Defendant-Appellant. BRIEF FOR DEFENDANT -APPELLANT KENT V. MOSTON Attorney for Defendant-Appellant Attorney in Chief Legal Aid Society of Nassau County 40 Main Street, 3rd Floor Hempstead, NY 11550 Tel No. (516) 560-6400, ext. 06422 Fax. No. (516) 572-1957/1959 OF COUNSEL: JEREMY L. GOLDBERG DORICOHEN Date Completed: January 27,2016 APL-2015-00312 TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ............................. IV PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Underlying Offense and Appellant's Jury Trial . . . . . . . . . . . . . . . . . 6 The Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Motion To Dismiss ........................................ 7 The Appellate Term's Decision and Order .......................... 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 IT IS IMPROPER FOR AN INTERMEDIATE APPELLATE COURT TO DISMISS A DIRECT APPEAL AS OF RIGHT ON THE GROUNDS THAT APPELLANT HAS BEEN DEPORTED, THE APPEALED CONVICTIONS WERE NOT THE BASES OF THE DEPORTATION, AND APPELLANT HAS FAILED TO HAVE ANY CONTACT WITH APPELLATE COUNSEL, WHERE THE ABSENCE OF APPELLANT WAS INVOLUNTARY, BOTH DISMISSAL AND NONDISMISSAL ISSUES WERE RAISED, AND APPELLANT HAD DEMONSTRATED HIS INTEREST IN HIS APPEAL BY EXECUTING A FINANCIAL AFFIDAVIT IN SUPPORT OF HIS MOTION FOR POOR PERSON RELIEF BEFORE THE INTERMEDIATE APPELLATE COURT . . . . . . . . . . . . . . . . . . . . . . . . 10 i A. Involuntarily Deported Defendants Should be Entitled to Intermediate Appellate Review of Their Convictions Even When Those Convictions Did Not Form the Basis for the Deportation Because: (1) The Convictions Could Still Have Consequences For Readmissibility; (2) It is Often Difficult to Determine the Basis of the Deportation; (3) Investing Appellate Practitioners With the Responsibility for Determining Whether or Not Their Clients Have a Right to Intermediate Appellate Review Places Them in an Adversarial Position To Their Clients; and (4) Defendants Can Waive Their Appearance at Future Proceedings in the Event of a Remand and Be Represented By Counsel . . . . . . . . . . 13 B. Involuntarily Deported Defendants Should be Entitled to Intermediate Appellate Review of Their Convictions Even When There Has Been No Communication Between Them and Appellate Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 C. The Inclusion in Appellant's Brief oflssues That, if Successful, Would Result in a Remand For Further Proceedings, Should Still Entitle Him to Intermediate Appellate Review of His Convictions, in That Appellant Has Also Raised Issues That Would Result in Outright Dismissal if Successful, and Fashioning a Rule That Would Give Appellate Rights Solely to Those Deported Defendants Raising Only Dismissal Issues Would Impair the Ability of Appellate Practitioners to Act as Zealous Advocates for Their Deported Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 D. An Unambiguous Rule Entitling Involuntarily Deported Defendants To Intermediate Appellate Review of Their Convictions Would be in the Interest of Judicial Economy, in that Appellate Courts Could Reach the Merits of Those Appeals Without Holding Them in Abeyance, and Appellate Practitioners Would Be Able to Perfect Those Appeals Without Fearing Dismissal After Expending Time and Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ii CONCLUSION .................................................. 31 iii TABLE OF AUTHORITIES FEDERAL CASES Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 17 DeGiorgio v. Fitzpatrick, 2013 U.S. Dist. LEXIS 34834 (S.D.N.Y. 2013) . . . . 15 Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Haywood v. Bureau ofiCE, 372 Fed. Appx. 122 (2d Cir. 2010) ............. 24 Hernandez v. Khahaifa, 2013 U.S. Dist. LEXIS 107560 (S.D.N.Y. 2013) . . . . 24 Kouljinski v. Keisler, 505 F.3d 534 (6th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . 14 Mitchell v. People, 2007 U.S. Dist. LEXIS 85049 (S.D.N.Y. 2007) . . . . . . . . . 15 Smith v. United States, 2008 U.S. Dist. LEXIS 55030 (E.D.N.Y. 2008)...... 14 Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Ashraf, 628 F.3d 813 (6th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 13 United States v. Edmonson, 962 F.2d 1535 (lOth Cir. 1992) . . . . . . . . . . . . . . . 20 United States v. Hamdi, 432 F.3d 115 (2d Cir. 2005) .................. 13-14 United States v. Quezada-Enriquez, 567 F.3d 1228 (lOth Cir. 2009) . . . . . . . . 20 STATE CASES Matter ofEdwardo V., 70 Cal. App. 4th 591 (Ct. App. 1999) ............... 24 People v. Bonilla, 2010 N.Y. Slip.Op. 76860U (2d Dept. 2010) ............. 11 People v. Carty, 96 A.D.3d 1093 (3d Dept. 2012) ........................ 29 iv People v. Edwards, 117 A.D.3d 418 (1st Dept. 2014) ..................... 15 People v. Epps, 37 N.Y.2d 343 (1975) ................................. 20 People v. Gonzalez, 47 N.Y.2d 606 (1979) ............................. 27 People v. Gudino, 2015 N.Y. Slip.Op. 08965 (1st Dept. 2015) .............. 15 People v. Gudino-Sanchez, 116 A.D.3d 565 (1st Dept. 2014) ............... 15 People v. Harrison, 115 A.D.3d 980 (2d Dept. 2014), lv. granted, 24 N.Y.3d 1084 (2014) ........................ 26, 28-29 People v. Hemans, 132 A.D.3d 428 (1st Dept. 2015) ...................... 29 People v. Hidalgo, 13 Misc.3d 1203A (Sup. Ct. N.Y. County 2006) ......... 11 People v. Jones, 104 A.D.3d 957 (2d Dept. 2013) ........................ 29 People v. Martin, 2015 N.Y. Slip.Op. 08871 (3d Dept. 2015) ............... 29 People v. Mitchell, 21 N.Y.3d 964 (2013) .............................. 18 People v. Montgomery, 24 N.Y.2d 130 (1969) ........................... 12 People v. Philogene, 45 Misc.3d 1220A (Sup. Ct. Kings County 2014) .... 28-29 People v. Puluc-Sique, 182 Cal. App. 4th 894 (Ct. App. 2010) .............. 20 People v. Reyes, 292 A.D.2d 271 (1st Dept. 2002) ....................... 11 People v. Rosario, 2015 N.Y. Slip.Op. 09230 (2015) ..................... 22 People v. Scott, 113 A.D.3d 491 (1st Dept. 2014) ........................ 15 People v. Serrano, 45 Misc.3d 69 (App. Term 2d, 11th & 13th Jud. Dists. 2014), lv. granted, 25 N.Y.3d 953 (2015) ............. 26, 28 v People v. Smith, 2015 N.Y. Slip.Op. 30272U (Sup. Ct. Kings County 2015) ... 28 People v. Ventura, 17 N.Y.3d 675 (2011) ........................... passim People v. Walsh, 222 A.D.2d 735 (3d Dept. 1995) ....................... 20 STATUTES 8 U.S.C. § 1182(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 8 U.S.C. § 1182(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 22 N.Y.C.R.R. § 671.3 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 22 N.Y.C.R.R. § 671.3 (b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C.P.L. § 260.20 ................................................... 20 C.P.L. § 340.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 C.P.L. § 340.50(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 C.P.L. § 440.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28-29 C.P.L. § 450.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C.P.L. § 450.90(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C.P.L. § 470.60(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C.P.L. § 470.60(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Fed. Rules ofCrim. Proc. rule 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Vehicle and Traffic Law§ 375.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 VI Vehicle and Traffic Law§ 509.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Vehicle and Traffic Law§ 1163(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Vehicle and Traffic Law § 1180( d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Vehicle and Traffic Law§ 1192.2................................. 1, 4, 6 Vehicle and Traffic Law § 1192.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6 OTHER AUTHORITIES ABA Standards for Criminal Justice, Preparing to Appeal, 4-9.1 (4th ed. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Department of Homeland Security, FOIA, Check Status of Request, available at http://www.dhs.gov/foia-status (last accessed Jan. 12, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Department of Justice Freedom oflnformation Act Reference Guide, Response Times, available at http://www.justice.gov/oip/department-justice-freedom-information-act-reference- guide#time (last accessed Jan. 12, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 vii COURT OF APPEALS STATE OF NEW YORK -------------------------------------~-----------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CRlSTIAN MORALES, Defendant-Appellant. -------------------------------------------------------------------)( PRELIMINARY STATEMENT APL-2015-00312 By permission of the Honorable Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, granted November 30, 2015 (A.1),1 appellant Cristian Morales appeals from an order of the Appellate Term, Ninth and Tenth Judicial Districts, dated August 10, 2015 (A.2), that dismissed, upon the prosecution's motion, the appeal from a judgment of the First District Court of Nassau County, rendered October 13, 2011, convicting appellant, after a jury trial, of driving while into)(icated per se (V.T.L. § 1192.2), driving while into)(icated (V.T.L. § 1192.3), speeding (V.T.L. § 1180[d]), failure to signal a tum (V.T.L. § 1163[a]), and driving with visibility distorted (V.T.L. § 375.22), and upon a plea of guilty, of unlicensed 1 Numbers in parentheses preceded by "A" refer to the pages in the Appendix. 1 operation (V.T.L. § 509.1), and sentencing him to time served,2 a driver's license revocation, twelve months of an ignition interlock device, and various fees and surcharges, under Nassau County docket number 2010NA032763 (Alexander, J.) (A.142-156). The Appellate Term dismissed the appeal without prejudice to appellant moving to reinstate the appeal should he return to that court's jurisdiction (A.2). On January 5, 2016, this Court granted appellant's motion for assignment of counsel and assigned Kent V. Moston, Attorney in Chief of the Legal Aid Society of Nassau County, as counsel for appellant in this Court. There has been no stay of judgment pending appeal, and appellant has completed his sentence. On November 1, 2011, a warrant of removal/deportation for appellant3 was signed by John Tsoukaris, Field Office Director of the U.S. Department ofHomeland Security, Immigration and Customs Enforcement (A.28, attached as exhibit 5 to the People's motion to dismiss). According to the People's motion to dismiss, appellant was deported to his native Honduras on or about November 18, 2011 (A.8).4 2 Appellant had been incarcerated for approximately ten months and the People had recommended a sentence of ninety days (A.l48-149). 3 Appellant's name is listed as Rolando Otoniel Melendez Jimenez. 4 Appellate counsel's communications with appellant's former immigration attorney corroborate this statement. 2 Since December 11, 2015, appellate counsel has been in communication with appellant, via both email and telephone calls. Appellant currently resides in Honduras and has expressed his continued interest in the appeal ofhis Nassau County convictions, and his intention to waive his appearance at any future proceedings should he succeed on any issue in which the relief would be to remand to the court below for further proceedings, including a new trial. This Court has jurisdiction pursuant to C.P.L. §§ 450.90(1) and 470.60(3) to entertain this appeal and review the issue raised. The issue was preserved by appellant's affirmation in opposition to respondent's motion to dismiss appeal (A.32- 36). QUESTION PRESENTED Whether it is improper for an intermediate appellate court to dismiss a direct appeal as of right on the grounds that appellant has been deported, the appealed convictions were not the bases of the deportation, and appellant has failed to have any contact with appellate counsel, where the absence of appellant was involuntary, both dismissal and nondismissal issues were raised, and appellant had demonstrated his interest in his appeal by executing a financial affidavit in support of his motion for poor person relief before the intermediate appellate court? 3 STATEMENT OF FACTS Introduction On October 13, 2011, appellant Cristian Morales was convicted after a jury trial of various Vehicle and Traffic Law offenses, the most serious being the misdemeanors driving while intoxicated per se and driving while intoxicated (V.T.L. §§ 1192.2 & 1192.3)(A.142-144). Approximately three weeks after his conviction, appellant executed a financial affidavit to be appended to his motion for poor person relief and assignment of counsel for the appeal ofhis convictions before the Appellate Term, Ninth and Tenth Judicial Districts (A.170-174). Approximately two weeks later, appellant was deported to his native Honduras. Appellant's brief was filed with the Appellate Term on April21, 2015. It consisted of eight issues that were contained in three points (A.4 7 -140). Two of the issues were those in which the relief granted would be a reversal of the convictions and a complete dismissal of the accusatory instruments (A.125-139). The remaining issues, if successful on appeal, would result in the matter being remanded to the lower court for further proceedings and/or a new trial (A.86-124). As this was a direct appeal as of right, it was entirely record-based, and the brief was prepared without any direct input from appellant. Indeed, appellate counsel produced a 91-page brief with eight issues merely from a review of the record (A.47-140). 4 After requesting two extensions of time in which to file respondent's brief, the People instead filed a motion to dismiss appellant's appeal on June 26,2015, on the grounds that the basis of appellant's deportation was not the conviction from which he was appealing, appellant had no contact with appellate counsel and his current whereabouts were unknown, and appellant was unavailable to obey the mandate of either the Appellate Term or the lower court (A.3-31 ). Appellant filed an affirmation in opposition to the motion to dismiss, on July 6, 2015 (A.32-36). Appellant primarily relied on this Court's holding in People v. Ventura, 17 N.Y.3d 675 (2011), which stated that involuntarily deported defendants are entitled to intermediate appellate review of their convictions, regardless of the basis ofthe deportation, whether or not the defendant had remained in communication with appellate counsel, and the inclusion or exclusion of issues that, if successful, would result in a remand for further proceedings. The People filed a reply on July 17, 2015, which focused on the lack of involvement of appellant in the perfection of his appeal and his lack of communication with appellate counsel (A.37-46). On August 10, 2015, the Appellate Term dismissed appellant's appeal without prejudice to appellant moving to reinstate the appeal should he return to the jurisdiction of that court (A.2). The Appellate Term stated that respondent's motion 5 to dismiss was based "on the grounds, among others, that appellant has been deported and is no longer available to obey the mandate of the court, and that appellant has failed to have any contact with appellate counsel" (A.2) (internal citations omitted). The Underlying Offense and Appellant's Jury Trial On December 19, 2010, appellant was arrested and charged with the misdemeanors of driving while intoxicated per se (V.T.L. § 1192.2) and driving while intoxicated (V.T.L. § 1192.3), as well as five traffic violations (A.157-163). On October 13,2011, appellant was convicted after a jury trial of the two misdemeanors as well as three ofthe violations5 (A.142-144). He was sentenced to time served, a driver's license revocation, twelve months of an ignition interlock device, and various fees and surcharges (A.153-154). On November 4, 2011, appellant executed a financial affidavit to be appended to his motion for poor person relief and assignment of counsel before the Appellate Term (A.170-174). On November 1, 2011, a warrant ofremoval/deportation for appellant was signed by John Tsoukaris, Field Office Director of the U.S. Department ofHomeland Security, Immigration and Customs Enforcement (A.28, attached as exhibit 5 to the 5 Appellant pleaded guilty to one of the violations, and the remaining charge was dismissed. 6 People's motion to dismiss). Appellant was deported to his native Honduras on or about November 18, 2011 (A.8). The Direct Appeal Appellate counsel filed a brief on behalf of appellant on April 21, 20 15. It consisted of eight issues that were contained in three points (A.4 7 -140). Two ofthe issues, legal insufficiency and weight of the evidence, were those in which the relief granted would be a reversal of the convictions and a complete dismissal of the accusatory instruments (A.125-139). The remaining issues, if successful on appeal, would result in the matter being remanded to the lower court for further proceedings and/ or a new trial ( A.86-124 ). Appellate counsel produced a 91-page brief with eight issues from a review of the record, without any input from appellant, whose involvement was not required in this record-based direct appeal as of right (A.4 7- 140). The Motion To Dismiss After requesting two extensions oftime in which to file respondent's brief, the People ultimately instead filed a motion to dismiss appellant's appeal, on June 26, 2015, on the grounds that the basis of appellant's deportation was not the conviction 7 from which he was appealing, appellant had no contact with appellate counsel and his current whereabouts were unknown, and appellant was unavailable to obey the mandate of either the Appellate Term or the lower court (A.3-31 ). The People distinguished Ventura by stating that appellant's convictions were not the basis for his deportation, and that he raised issues that, if successful on appeal, would result in the matter being remanded to the lower court for further proceedings, in addition to raising issues in which the relief requested would be dismissal (A.13-15). On July 6, 2015, appellant filed an affirmation in opposition to respondent's motion to dismiss the appeal, relying primarily on this Court's holding in Ventura that involuntarily deported defendants are entitled to intermediate appellate review of their convictions, regardless of whether or not: the appealed convictions provided the basis ofthe deportation; the defendant had remained in communication with appellate counsel; and issues were included that, if successful, would result in a remand for further proceedings (A.32-36). Appellant argued that Ventura did not limit its holding solely to those defendants whose convictions were the bases of their deportations, nor to those defendants who raised only issues in which the relief granted upon a successful appeal would be a dismissal of the charges. As appellant raised both dismissal and nondismissal issues, his appeal should not be dismissed. The People filed a reply on July 17, 2015, which focused on the lack of 8 involvement of appellant in the perfection of his appeal and his lack of communication with appellate counsel, issues that were entirely unaddressed by both the majority and dissenting opinions in Ventura (A.37-46). The Atwellate Term's Decision and Order On August 10, 2015, the Appellate Term, Ninth and Tenth Judicial Districts, granted respondent's motion and dismissed the appeal "without prejudice to appellant moving to reinstate the appeal should he return" to the jurisdiction of that court (A.2). The Appellate Term stated that respondent's motion to dismiss was based "on the grounds, among others, that appellant has been deported and is no longer available to obey the mandate of the court, and that appellant has failed to have any contact with appellate counsel" (A.2) (internal citations omitted). 9 ARGUMENT IT IS IMPROPER FOR AN INTERMEDIATE APPELLATE COURT TO DISMISS A DIRECT APPEAL AS OF RIGHT ON THE GROUNDS THAT APPELLANT HAS BEEN DEPORTED, THE APPEALED CONVICTIONS WERE NOT THE BASES OF THE DEPORTATION, AND APPELLANT HAS FAILED TO HAVE ANY CONTACT WITH APPELLATE COUNSEL, WHERE THE ABSENCE OF APPELLANT WAS INVOLUNTARY, BOTH DISMISSAL AND NONDISMISSAL ISSUES WERE RAISED, AND APPELLANT HAD DEMONSTRATED HIS INTEREST IN HIS APPEAL BY EXECUTING A FINANCIAL AFFIDAVIT IN SUPPORT OF HIS MOTION FOR POOR PERSON RELIEF BEFORE THE INTERMEDIATE APPELLATE COURT. The Appellate Term, in granting respondent's motion to dismiss the direct appeal of appellant "without prejudice to appellant moving to reinstate the appeal should he return" to the jurisdiction of that court, manifestly violated the rule this Court set forth in People v. Ventura, 17 N.Y.3d 675 (2011), that involuntarily deported defendants are entitled to intermediate appellate review of their convictions, regardless of whether or not: the appealed convictions provided the basis for the deportation; the defendant had remained in communication with appellate counsel; or issues were included that, if successful, would result in a remand for further proceedings. Prior to Ventura, it was the usual practice for courts to dismiss the appeals of involuntarily deported defendants, on the grounds that they were currently 10 unavailable to obey the mandate of the court. See People v. Reyes, 292 A.D.2d 271 (1st Dept. 2002); People v. Hidalgo, 13 Misc.3d 1203A (Sup. Ct. N.Y. County 2006) (courts taking the position that involuntarily deported defendants should be allowed to challenge their convictions, even though they are no longer in the jurisdiction, was "contrary to current New York law"). Institutional defenders would make motions to be relieved as assigned counsel on cases in which their clients had been involuntarily deported, and those appeals would be thereupon dismissed. See People v. Bonilla, 2010 N.Y. Slip.Op. 76860U (2d Dept. 2010). Ventura changed all of that, imbuing involuntarily deported defendants with the right to intermediate appellate review of their convictions. In Ventura, this Court stated that all criminal defendants have "an absolute right to seek appellate review of their convictions," pursuant to C.P.L. § 450.10, "which codifies a criminal defendant's common-law right to appeal to an intermediate appellate court." Ventura, 17 N.Y.3d at 679. "The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York's hierarchy of appellate review, makes access to intermediate appellate courts imperative." I d. at 680-81 (internal citations omitted). The "broad review abilities" with which New York's intermediate appellate courts are empowered allow those courts "to play a uniquely critical role in the fair administration of justice, especially 11 when a defendant's path of appeal is often foreclosed after a final determination by the intermediate appellate court." Id. at 681 (end citation omitted). Although C.P.L. § 470.60(1) gives appellate courts discretion to dismiss an appeal "upon the ground ofmootness, lack of jurisdiction to determine it, failure of timely prosecution or perfection thereof, 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(1); Ventura, 17 N.Y.3d at 681), this Court held that "this discretionary power cannot be accorded such an expansive view as to curtail defendants' basic entitlement to appellate consideration. As 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."' Ventura, 17 N.Y. 3d at 681-82 (guoting People v. Montgomery, 24. N.Y.2d 130, 132 [1969]). In Ventura, therefore, this Court fashioned a blanket rule, as the dissent even acknowledged, that "it is always an abuse of discretion for the Appellate Division to dismiss the criminal appeal of an involuntarily deported noncitizen on the sole basis of unavailability." Id. at 682 (Read, J., dissenting) (emphasis in original). This rule was unambiguous - appellate counsel was now responsible for undertaking the appeals of their deported clients, and had to review the records in their cases, write 12 briefs, and perfect their appeals. Any change from this definite, explicit rule would create havoc for appellate practitioners and courts, as will be further delineated below. A. Involuntarily Deported Defendants Should be Entitled to Intermediate Appellate Review of Their Convictions Even When Those Convictions Did Not Form the Basis for the Deportation Because: (1) The Convictions Could Still Have Consequences For Readmissibility; (2) It is Often Difficult to Determine the Basis of the Deportation; (3) Investing Appellate Practitioners With the Responsibility for Determining Whether or Not Their Clients Have a Right to Intermediate Appellate Review Places Them in an Adversarial Position To Their Clients; and ( 4) Defendants Can Waive Their Appearance at Future Proceedings in the Event of a Remand, and Be Represented By Counsel. Whether or not the appealed convictions formed the basis for the deportation should have no bearing on the rights of involuntarily deported defendants to intermediate appellate review of their convictions. Courts have found that appeals of deported defendants are not moot even when the appealed conviction did not form the basis for the removal. See United States v. Ashraf, 628 F.3d 813, 821-22 (6th Cir. 2011) (defendant's "contention that his conviction [which was not the basis for his deportation] might affect the Attorney General's discretionary decision to allow him back in the country [ ... ] satisfies whatever minimal collateral consequence that [defendant] might be required to show in order for this court to retain jurisdiction over his claim"); see also United States v. Hamdi, 432 F.3d 115, 121 (2d Cir. 2005) 13 (appeal not moot where opportunity to reenter the United States at the discretion of the Attorney General gave defendant a personal stake in the litigation that presented a live case or controversy [conviction was the basis of the deportation]); Swaby v. Ashcroft, 357 F.3d 156, 160-61 (2d Cir. 2004) (same). The Attorney General, under 8 U.S.C. § 1182(d)(3), is granted "discretion to admit certain otherwise inadmissible aliens as temporary, nonimmigrant visitors, including aliens who are forbidden from entering the United States under 8 U.S.C. § 1182(a)." Smith v. United States, 2008 U.S. Dist. LEXIS 55030 (E.D.N.Y. 2008). Factors considered are: "(1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant's prior immigration law, or criminal law, violations; and (3) the nature of the applicant's reasons for wishing to enter the United States." Id. at *5. Appellant's driving while intoxicated convictions might influence the first two of these factors. See Kouljinski v. Keisler, 505 F.3d 534, 543 (6th Cir. 2007) (driving under the influence of alcohol convictions were properly considered in a discretionary denial of asylum). Tellingly, the First Department has declined to dismiss the appeals of involuntarily deported defendants who are appealing their Sex Offender Registration Act level adjudications, recognizing "the potential consequences" and affording the defendants their sole opportunity for intermediate appellate review, even though the 14 collateral consequences for those civil appeals are far more remote than those for the criminal convictions which are at issue here. People v. Scott, 113 A.D.3d 491, 492 (1st Dept. 2014); see also People v. Gudino, 2015 N.Y. Slip.Op. 08965 (1st Dept. 2015); People v. Edwards, 117 A.D.3d 418, 418-419 (1st Dept. 2014); People v. Gudino-Sanchez, 116 A.D.3d 565,566 (1st Dept. 2014). Although appellant's driving while intoxicated convictions did not form the basis for his removal, his appeal is not moot in that a successful appeal could impact his readmissibility chances. Yet there are more reasons to allow intermediate appellate review of convictions which did not form the basis for the removal of the defendant. It is often difficult to determine the exact basis for the deportation, or indeed, even whether or not a defendant has been deported at all. See DeGiorgio v. Fitzpatrick, 2013 U.S. Dist. LEXIS 34834 (S.D.N.Y. 2013) (unclear if defendant was deported); Mitchell v. People, 2007 U.S. Dist. LEXIS 85049 (S.D.N.Y. 2007) (lack of clarity as to basis of deportation). Modem immigration law has been described as "a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike." Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003). To determine the current status of a client's immigration case, a practitioner can call the hotline of the Executive Office for Immigration Review (hereinafter "EOIR"), 15 although a response that a client has been ordered deported does not necessarily signify that the client has been physically removed. Alternatively, a Form G-28 (Department of Homeland Security (hereinafter "DHS") Notice of Entry of Appearance as Attorney or Accredited Representative) can be filed with Immigration and Customs Enforcement (hereinafter "ICE"), although the client must have signed that form. A Freedom of Information Act (hereinafter "FOIA") request can be made to DHS, via their Form G-63 9 {Freedom oflnformation/Privacy Act Request), but again, that form requires the client's signature. A FOIA request can also be made to EOIR via form DOJ-361 (Certification ofldentity), which requires the client's signature. This last request can result in obtaining the Notice to Appear, which lists the charges of removal, and the deportation order, although it will not state under which section of the Immigration and Nationality Act the person violated that resulted in the deportation. ICE has an online locator to determine if a person is in their custody, but in order to search, it is necessary to obtain the person's alien registration number, or their full name, date of birth, and country of nationality. If an individual is listed one day and then disappears from the website the next day, it could mean either that the person was deported or released from ICE custody. The reason cannot be determined 16 from the website. Determining the basis for the deportation is similarly convoluted. The Notice to Appear and the deportation order might have the basis, but that is not always the case. See Brown v. Ashcroft, 360 F.3d 346, 348 (2dCir. 2004) (a conviction maybe found to bar relief as an "aggravated felony" or otherwise even though the government lodged no such charge on the Notice to Appear). The response times to the above-stated requests can be lengthy. Although under FOIA federal agencies are required to respond to a request within twenty business days, the response time can be extended if the request was misdirected or when "unusual circumstances" exist. See Department of Justice Freedom of Information Act Reference Guide, Response Times, available at http://www.justice.gov/oip/department-justice-freedom-information-act-reference- guide#time (last accessed Jan. 12, 2016). DHS states that their response time for requests is an average of 21.24 days for simple requests and 111.59 for complex requests. See Department of Homeland Security, FOIA, Check Status of Request, available at http://www.dhs.gov/foia-status (last accessed Jan. 12, 2016). The process for determining whether or not an individual has been deported, and on what basis, is complicated, time-consuming, and possibly unfruitful. Investing appellate practitioners with this burdensome responsibility for determining 17 whether or not their clients have a right to intermediate appellate review places them in an adversarial position with the clients for which they have promised zealous advocacy. If charged with this task, appellate practitioners would be delving into matters that are dehors the record, the very antithesis of what a record-based direct appeal should be. More important, however, is that appellate counsel would be attempting to determine whether or not their clients had a right to intermediate appellate review. Appellate counsel would be placed in an adverse position to that oftheir clients, in that they would be attempting to discover the basis of the deportation so that they would not perfect the appeals. Otherwise, they would simply review the records and write the briefs. A conflict would naturally arise in that appellate counsel was working to determine that their clients did not have the right to intermediate appellate review of their convictions. Counsel should not be put in a position where they are taking a contrary position to their clients' interests. See People v. Mitchell, 21 N.Y.3d 964, 967 (2013) (defense counsel may not take a position adverse to the defendant and, when that happens, a conflict of interest arises, and new counsel must be assigned). The facile but dubious solution to this conflict is to make it the People's initial obligation to inquire into whether a defendant has been deported, and on what basis, 18 but this does not resolve significant remaining problems. For instance, if that inquiry was not made, and a motion for dismissal was not brought and granted until after counsel for appellant filed the brief for appellant, then the overtaxed resources of New York's numerous institutional defenders would be needlessly squandered; 6 the instant case is itself an example of just such an occurrence. If the People moved to dismiss in a timely response to the filing of a notice of appeal, this would still leave open questions concerning defendants who were not yet deported but were subsequently. The challenges surrounding the determination of the basis for a deportation remain. See supra pp. 15-17. Thus, removal of the onus and conflict of having appellant's counsel investigate his immigration-based "eligibility" for appellate rights does not solve the problems created by any ofthe approaches taken by the court below or suggested by the People. It would be folly for any approach to determining the appellate rights of people situated like the appellant here to not significantly factor in the effect of that approach on not only judicial resources, but those of prosecutors and assigned appellate counsel as well. 6 It seems inevitable that the overwhelming number of appeals of this type are going to fall to institutional defenders. At the very least almost all appellate counsel in these appeals will be assigned. Undocumented residents of the United States are not generally associated with having the financial means to pay for the cost of an appeal, probably because if they had those kind of resources, they might well have been able to avoid immigration problems to begin with. 19 For both appellate practitioners and courts alike, the unambiguous rule espoused in Ventura gives clear guidance as to what is required - to perfect the appeals of involuntarily deported defendants. Any middle ground would create confusion and delay. Here, although the appealed convictions did not form the basis for the deportation, success on the merits could affect appellant's future readmissibility. In addition, as stated in Ventura, "[i]n other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate ofthe court." Ventura, 17 N.Y.3d at 682; see also People v. Puluc-Sique, 182 Cal. App. 4th 894, 899 (Ct. App. 2010) (defendants may appear through counsel). A defendant's right to be present at a criminal trial is contained in C.P.L. §§ 260.20 & 340.50, as well as in Federal Rules of Criminal Procedure rule 43. However, this right may be waived by the defendant. C.P.L. § 340.50(2); People v. ~. 37 N.Y.2d 343, 349-50 (1975); People v. Walsh, 222 A.D.2d 735, 736 (3d Dept. 1995); United States v. Quezada-Enriquez, 567 F.3d 1228, 1232 (lOth Cir. 2009); United States v. Edmonson, 962 F.2d 1535, 1544 (lOth Cir. 1992). If appellant were to succeed in his appeal on one of the issues in which the relief would entail a remand for further proceedings, appellant could be represented by counsel, 20 and his physical presence would not be required. 7 Perfecting the appeal now, rather than holding it in abeyance until such time as appellant returned to the court's jurisdiction, would solve the problems of a remand possibly years later, when both witnesses and transcribed minutes might become unavailable. Therefore, involuntarily deported defendants whose appealed convictions did not form the basis of their deportations should be entitled to intermediate appellate review of those convictions, as there could still be consequences for readmissibility, it is often difficult and time-consuming to determine the exact basis of the deportation, investing appellate practitioners with the responsibility for determining whether or not their clients have a right to intermediate appellate review places them in adversarial positions to their clients, and defendants can waive their appearances at future proceedings in the event of a remand. B. Involuntarily Deported Defendants Should be Entitled to Intermediate Appellate Review of Their Convictions Even When There Has Been No Communication Between Them and Appellate Counsel. In Ventura, there was no discussion about whether or not the deported 7 In telephone conversations appellate counsel had with appellant in December 2015, appellant expressed his intention to waive his appearance at any future proceedings. In fact, at his trial on October 4, 2011, appellant had signed a Parker Advisement, stating that the trial and sentence could proceed in his absence should he flee the jurisdiction (A.l41). 21 defendants had maintained communications with counsel. Communication with appellate counsel was not a factor that was stated as a precursor to obtaining the right to intermediate appellate review of an involuntarily deported defendant's convictions. Yet here, respondent listed a lack of communication between appellant and appellate counsel as a reason to dismiss the appeal. Appellant had filled out, signed and had notarized a financial affidavit, to be appended to his motion for poor person relief and assignment of counsel, evidencing his intent to go forward with the appeal of his convictions, and his interest in doing so (A.170-174). See 22 N.Y.C.R.R. §§ 671.3 (a) & (b)(3) (counsel must file notice of appeal upon receiving timely notice from client of his desire to appeal, and it is the client's right to make an application to the appellate court for poor person relief and assignment of counsel); People v. Rosario, 2015 N.Y. Slip.Op. 09230, at *10-12 (2015) (Lippman, J., concurring) (all of the Appellate Divisions promulgated rules requiring defense counsel to advise clients of the right to appeal, and the ABA Standards for Criminal Justice state that "the ultimate decision whether to appeal should be the client's" (ABA Standards for Criminal Justice, Preparing to Appeal, 4-9.1 [4th ed. 2015])). That was all that was required in order to get assigned appellate counsel, who subsequently wrote a 91- page, record-based appellate brief that consisted of eight issues contained in three points. Due to the fact that a direct appeal must be completely record-based, input 22 from clients is not necessary, although it is invited. As an institutional defender, appellate counsel is often faced with clients with which it is difficult to maintain contact, after the financial· affidavit is acquired. Defendants could be homeless, or lack the funds in order to obtain a telephone, much less a computer. They could suffer from mental illness, and lack communication skills, especially if they are not taking their medications. A rule affording involuntarily deported defendants the right to intermediate appellate review of their convictions, that is based on the frequency of communication with counsel, is fraught with difficulty, including determining exactly how much communication would be considered enough. Perhaps a client has been in communication with counsel, but is then hospitalized and unable to communicate. That client should not lose their appellate rights simply due to a loss of communication. Deported defendants should be treated no differently than others who, for whatever reason, fail to communicate with appellate counsel. The execution of a financial affidavit, signifying the client's interest in the appeal, should be sufficient to retain the right to intermediate appellate review, a right which this Court described as "fundamental" and "invariabl[y] important." Ventura, 17 N.Y.3d at 680-81. Significantly, other courts have declined to dismiss as moot the appeals of deported defendants whose whereabouts were unknown and who had failed to 23 communicate with appellate counsel. See Haywood v. Bureau of Immigration & Customs Enforcement, 372 Fed. Appx. 122, 124 (2d Cir. 2010) (appeal of denial of application for withholding of removal not moot where Government's contention that the defendant "could not learn of a decision in his favor is speculative" and his lack of participation in his appeal does "not suffice to render the petition moot"); Hernandezv. Khahaifa, 2013 U.S. Dist.LEXIS 107560 (S.D.N.Y. 2013)(petitionfor a writ ofhabeas corpus not moot where petitioner was deported and his whereabouts were unknown); Matter of Edwardo V., 70 Cal. App. 4th 591, 593 n.1 (Ct. App. 1999) (petition not dismissed as moot where petitioner was deported and counsel had lost contact with him). Therefore, for all of the above reasons, a lack of communication between a deported defendant and appellate counsel should not have any impact on whether or not the defendant is entitled to intermediate appellate review of his convictions.8 C. The Inclusion in Appellant's Brief of Issues That, if Successful, Would Result in a Remand For Further Proceedings, Should Still Entitle Him to Intermediate Appellate Review of His Convictions, in That Appellant Has Also Raised Issues That Would Result in Outright Dismissal if Successful, and Fashioning a Rule That Would Give Appellate Rights Solely to Those Deported Defendants Raising Only Dismissal Issues Would Impair the Ability of Appellate 8 Appellant has been in email and telephonic contact with appellate counsel since December 11, 2015. However, it is appellant's position that it should not matter even ifthere was no contact- he should still be entitled to intermediate appellate review of his convictions. 24 Practitioners to Act as Zealous Advocates for Their Deported Clients. In the final paragraph ofthe majority opinion in Ventura, this Court noted that "[i]n other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court," and in any event, appellate issues that "would result in either an affirmance or outright dismissal of the convictions [ ... ] would [not] require the continued legal participation of defendants." Ventura, 17 N.Y.3d at 682. The majority was not stating that solely dismissal issues had to be raised in order to avoid dismissal of an appeal of a deported defendant, a fact to which the dissent expressly referred when it stated that the appellants in Ventura advocated for a rule that deported defendants who raised only dismissal issues were entitled to have their appeals decided on the merits by the Appellate Division, but which the majority rejected in favor of the "categorical" and "unqualified" rule it adopted. Id. at 683, n.l. Here, in respondent's memorandum oflaw in support of their motion to dismiss the appeal, they acknowledge that appellant's continued legal participation would not be required were he to prevail on his legal insufficiency and weight of the evidence claims (A.13). Yet tellingly, respondent does not, nor could they, explain why the 25 Appellate Term should then dismiss the appeal even though dismissal issues, the precise issues raised in the Ventura case, were raised. Respondent cited to two cases, currently granted leave by this Court, to support their position, yet both are distinguishable from the instant matter, in that any success on the merits would necessarily involve the continued participation of the defendants. See People v. Harrison, 115 A.D.3d 980 (2d Dept. 2014), lv. granted, 24 N.Y.3d 1084 (2014) (dismissal of appeal by permission from a denial of a motion pursuant to C.P .L. § 440.1 0); People v. Serrano, 45 Misc.3d 69 (App. Term 2d, 11th & 13th Jud. Dists. 2014), lv. granted, 25 N.Y.3d 953 (2015) (dismissal of direct appeal based on a guilty plea). Here, appellant has raised some issues that, if they were to succeed on the merits, would require reversal and remittal for further proceedings (A.86-124), as well as some issues that, if they were found to be meritorious, would require outright reversal and dismissal (A.125-139). In fact, two of the three points raised in appellant's brief were issues that would result in dismissal if successful (A.86-139). Appellant should not be precluded from appealing his convictions solely because there were some issues raised that, if they were to succeed, would require his case to be remitted for further proceedings. First, as this Court expressly stated in Ventura, "[i]n other jurisdictions, defendants who continue prosecution of their appeals 26 through representation of counsel are not deemed unavailable to obey the mandate of the court." Ventura, 17 N.Y.3d at 682. Appellant may waive his appearance at future proceedings and be represented by counsel. See supra p. 19. Second, this Court in Ventura did not limit the appellate rights of deported defendants to only those issues which would, if successful, result in outright dismissal, even though that was the rule that counsel for appellants had advanced in their briefs, according to the dissent. Ventura, 17 N.Y.3d at 683, n.l. Third, and importantly, such a rule would place counsel for appellant in a quandary. Appellate counsel are supposed to be zealous advocates for their clients, and strive to raise all colorable claims on appeal. Such a rule as respondent asserted in their motion to dismiss the appeal - that an appeal of a deported client must be dismissed ifit raised both dismissal issues and issues in which the relief sought would be reversal and remittal to a lower court- would lead an appellate attorney to be in conflict, for there would be many instances where, to avoid the result of dismissal of the appeal, counsel might solely raise dismissal issues even ifthere were meritorious issues that could result in reversal and remittal. Appellate counsel would be placed in an impossible situation. See People v. Gonzalez, 47 N.Y.2d 606, 610 (1979) ("[t]he right of an indigent criminal defendant to the services of counsel on appeal [ ... ] requires the effective assistance of 'single-minded' counsel in the 'research of 27 the law, and marshalling of arguments on [defendant's] behalf,' so that defendant is provided the 'full consideration and resolution of the matter' of 'an active advocate in behalf of his client"') (internal and end citations omitted). Such a rule defies all logic and common sense, and that is decidedly not the rule fashioned by this Court in Ventura. Appellant should still be entitled to intermediate appellate review of his convictions, despite raising non-dismissal issues in addition to dismissal ones. D. An Unambiguous Rule Entitling Involuntarily Deported Defendants To Intermediate Appellate Review of Their Convictions Would be in the Interest of Judicial Economy, in that Appellate Courts Could Reach the Merits of Those Appeals Without Holding Them in Abeyance, and Appellate Practitioners Would Be Able to Perfect Those Appeals Without Fearing Dismissal After Expending Time and Resources. In Serrano, the Appellate Term, Second, Eleventh and Thirteenth Judicial Districts, actually decided the issue in the case, that the defendant's plea was insufficient since the lower court failed to advise him of his constitutional rights. Serrano, 45 Misc.3d at 71-72. Yet, after deciding the very issue in the case, the court dismissed the appeal since the defendant had been deported and reversal and remittal would be required. Id. at 72. In a similar vein, the Supreme Court of Kings County has found motions to vacate convictions, pursuantto C.P.L. § 440.10, moot due to the defendants' deportation, yet reached the merits of the motions anyway. See People v. Smith, 2015 N.Y. Slip.Op. 30272U (Sup. Ct. Kings County 2015); People v. 28 Philogene, 45 Misc.3d 1220A (Sup. Ct. Kings County 2014). In Harrison, after all briefs were filed, the People submitted a motion to dismiss the appeal ofthe denial ofthe defendant's motion pursuant to C.P .L. § 440.10, on the basis of the defendant's deportation, which was granted by the Appellate Division, Second Department, even though all briefs were filed and oral argument had been heard. Harrison, 115 AD .3d at 980-82 (2014). Conversely, other courts have followed the controlling precedent of Ventura, finding that deported defendants have a right to intermediate appellate review oftheir convictions, both on direct appeals of convictions based on guilty pleas, as well as on appeals of denials of motions pursuant to C.P.L. § 440.10. See People v. Martin, 2015 N.Y. Slip.Op. 08871 (3d Dept. 2015) (direct appeal of conviction based on guilty plea); People v. Jones, 104 A.D.3d 957 (2d Dept. 2013) (same); People v. Hemans, 132 A.D.3d 428 (1st Dept. 2015) (appeal of denial of motion pursuant to C.P.L. § 440.10); People v. Carty, 96 A.D.3d 1093 (3d Dept. 2012) (same). Here, appellate counsel filed a 91-page brief, and the People subsequently requested two extensions to file their respondent's brief. However, rather than filing a brief, the People moved to dismiss the appeal, which the Appellate Term granted. The above cases illustrate a waste of judicial resources, and a waste of time and resources of appellate counsel. There must be clearly defined, unambiguous rules 29 surrounding the rights of involuntarily deported defendants to intermediate appellate review of their convictions. Ventura should be reaffirmed. Any addendums to the rule, such as delving into- the basis of the deportation, the communication or lack thereof between defendants and counsel, the type of relief requested in each of the issues raised in appellant's brief- would only lead to further confusion among appellate practitioners and the courts. Therefore, the Appellate Term's order dismissing appellant's appeal should be reversed and the appeal reinstated for consideration on the merits. Ventura, 17 N.Y.3d 675 (2011). 30 CONCLUSION FOR THE ABOVE STATED REASONS, THE APPELLATE TERM'S ORDER DISMISSING APPELLANT'S APPEAL SHOULD BE REVERSED AND THE APPEAL REINSTATED FOR CONSIDERATION ON THE MERITS. OF COUNSEL JEREMY L. GOLDBERG DORlCOHEN Respectfully submitted, KENT V. MOSTON Attorney in Chief BY: Dori Cohen Attorney for the Defendant-Appellant Legal Aid Society ofNassau County 40 Main Street, 3rd Floor Hempstead, NY 11550 (516) 560-6400, ext. 06422 31