The People, Respondent,v.Cristian Morales, Appellant.BriefN.Y.November 17, 2016To be argued by: DORICOHEN Argument Time Requested: 15 Minutes First District Court, Nassau County Index No. 2010NA032763 QI:ourt of %lppeal~ State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CRISTIAN MORALES, Defendant-Appellant. REPLY 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: March 29,2016 APL-2015-00312 TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . u PRELIMINARY STATEMENT ...................................... 1 ARGUMENT ..................................................... 2 CONTRARY TO RESPONDENT'S CLAIM, 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 . . . . . . . . . . . . 2 CONCLUSION .................................................. 18 TABLE OF AUTHORITIES FEDERAL CASES Haywood v. Bureau ofiCE, 372 Fed. Appx. 122 (2d Cir. 2010) ............. 12 Hernandez v. Khahaifa, 2013 U.S. Dist. LEXIS 107560 (S.D.N.Y. 2013) . . . . 12 Jones v. Barnes, 463 U.S. 745 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Ryan v. Gonzales, 133 S.Ct. 696 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Ashraf, 628 F.3d 813 (6th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 14 United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007) . . . . . . . . . . 14 STATE CASES Matter ofEdwardo V., 70 Cal. App. 4th 591 (Ct. App. 1999) ............... 13 People v. Calderon, 107 A.D.3d 470 (1st Dept. 2013) ...................... 8 People v. Cooper, 98 N.Y.2d 541 (2002) ............................... 16 People v. Ibarra, 2016 N.Y. Slip.Op. 02065 (2d Dept. Mar. 23, 2016) ........ 16 People v. Montgomery, 24 N.Y.2d 130 (1969) ........................... 16 People v. Perez, 23 N.Y.3d 89 (2014) .................................. 11 People v. Reyes, 292 A.D.2d 271 (1st Dept. 2002) ....................... 13 People v. Shim, 2016 N.Y. Slip.Op. 01818 (2dDept. Mar. 16, 2016) ...... 6, 16 People v. Stultz, 2 N.Y.3d 277 (2004) ................................. 11 ii People v. Turner, 5 N.Y.3d 476 (2005) ................................. 11 People v. Ventura, 17 N.Y.3d 675 (2011) ........................... passim People v. Watson, 77 N.Y.2d 857 (1991) ................................ 8 STATUTES C.P.L. § 470.60(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7 Fed. Rules ofCrim. Proc. rule 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 iii 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 This brief is submitted in reply to the arguments set forth in Respondent's Brief, which was served by mail on March 17, 2016. It addresses several unavailing claims by Respondent. As to all other aspects of Appellant's Brief, he relies on his main brief. I ARGUMENT CONTRARY TO RESPONDENT'S CLAIM, 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. Notwithstanding respondent's contention, the issue in this case is not "whether a procedural state statute permits dismissal of an appeal when a defendant is not available to obey the mandate ofthe court." (Respondent's Br., p. 35). Rather, the issue is whether the Appellate Term, in granting respondent's motion to dismiss appellant's appeal, 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. If the issue was as respondent claims, then C.P.L. § 470.60(1) would render this Court's holding in 2 Ventura moot. Respondent states that "Ventura does not mandate that defendant's appeal be heard" and attempts to distinguish Ventura from the instant matter in three ways, none of which are availing. (Respondent's Br., pp. 29-30). The first reason is that the defendants in Ventura raised only dismissal issues, whereas here, appellant's legal participation would be required for further proceedings were he to succeed on any of his five claims of trial error. (Respondent's Br., pp. 24-25, 30-31). Respondent reluctantly acknowledges in a footnote that appellant raised legal sufficiency and weight of the evidence claims (the precise claims raised by the defendants in Ventura) that, if successful, "would not necessarily compel his presence in future proceedings" should his convictions be reversed and the accusatory instruments dismissed. (Respondent's Br., p. 31, n.1 0). Ventura did not limit the right to intermediate appellate rev1ew of the convictions solely of those deported defendants who raised only issues that would result in an outright dismissal or affirmance. In fact, the dissent acknowledged that the majority opinion was wide-ranging 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 3 adopted. Ventura, 17 N.Y.3d at 683, n.l. Respondent, although acknowledging that appellant here raised dismissal issues, fails to explain why the Appellate Term should then dismiss his appeal even though the very issues raised by the defendants in Ventura were raised here as well. Unless the Appellate Term reaches the merits of the appeal, it is unknown whether or not appellant would be successful, and if so, which issues would succeed. Furthermore, although respondent states that there is "no assurance" that appellant would execute a waiver of appearance at any possible future court proceedings, he in fact did so, on January 18, 2016, and it is in the possession of appellate counse1.1 He would be able to be represented by counsel in the event that his case was remanded should he succeed on one of the trial court error issues. The second way that respondent attempts to distinguish Ventura from the instant matter is that, according to respondent, Ventura "assumes that there was a connection between the defendants' convictions and their deportations" since this Court stated that deported defendants "have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation." Ventura, 17 N.Y.3d at 680; Respondent's Br., p. 31. Respondent asserts that Ventura does not 1 A copy of appellant's affidavit executing his waiver of appearance at possible future court appearances is available upon request by this Court. 4 apply to appellant's situation because his "deportation was not related to his conviction," which "was for a non-deportable offense." (Respondent's Br., p. 31 ). While it is true that the Notice of Intent/Decision to Reinstate Prior Order (Appellant's Appx., p. A26) states that appellant was subject to removal due to having been deported previously, appellant is in the exact same position as defendants Ventura and Gardner in the Ventura case, since the facts delineated therein show that neither defendant was deported based on their appealed conviCtions. The dissent stated that Gardner "was deported for overstaying his visa," and that "there is nothing in the record to suggest that the conviction for which defendant Carlos Ventura sought review - as opposed to his unrelated, and unappealed, judgment of conviction and sentence for burglary -caused his deportation or would prevent or complicate his return to the United States." Ventura, 17 N.Y.3d at 685. The final way that respondent attempts to distinguish Ventura from the instant matter is that, according to respondent, the appeals of both Gardner and Ventura were dismissed with prejudice, whereas here, the Appellate Term dismissed appellant's appeal without prejudice, suggesting that appellant is in a stronger position than the defendants in Ventura in that, should he return to the court's jurisdiction, he could make a motion to have his appeal reinstated. Yet, neither of the decisions dismissing the appeals of Gardner and Ventura contained any mention of prejudice. 5 (Respondent's Appx., pp. RA11-14). Neither of those decisions stated that the appeals were being dismissed with prejudice. Furthermore, the Ventura case specifically affirms that those appeals were dismissed without prejudice, when the dissent stated, "As was also the case with defendants Ventura and Gardner, the dismissal inDiaz was without prejudice to a subsequent motion to reinstate the appeal in the event the defendant was permitted to reenter the country and returned to New York." Ventura, 17N.Y.3dat684. A recent case by the Second Department, People v. Shim, 2016 N.Y. Slip.Op. 01818 (2d Dept. Mar. 16, 2016), mentions that the subject orders in Ventura dismissed the appeals with prejudice, which adds to the confusion. In any event, respondent cannot assert with any degree of certainty that the orders dismissed the appeals with prejudice when the orders did not state that, and this Court specifically stated otherwise. Importantly, even though appellant's appeal was dismissed without prejudice, that fact should not subject him to losing his fundamental right to intermediate appellate review. Appellant is in the exact same position as the defendants in Ventura -he was involuntarily deported, he raised issues that if successful would result in an outright affirmance or dismissal, and his conviction was not the basis of his deportation. If Ventura does not apply in this situation, one is left to wonder exactly 6 in what situation it would apply. Appellate practitioners should be able to put in the time, effort and expenditure with confidence that their work would not be subject to a motion to dismiss simply because their clients were deported. This Court acknowledged the "broad authority of the intermediate appellate courts to dismiss appeals," codified in C.P.L. § 470.60(1), yet held that "this discretionary power cannot be accorded such an expansive view as to curtail defendants' basic entitlementto appellate consideration." Ventura, 17 N. Y.3d at 681- 82. Respondent states that Ventura should not be read so that "a defendant's deported status protected from dismissal- or somehow validated- an appeal that otherwise would have been deemed defective, moot, or irregular." (Respondent's Br., p. 15). Yet there was nothing defective, moot or irregular here. Appellant filed a timely notice of appeal, and signed and notarized a financial affidavit to append to his motion for poor person relief and assignment of counsel on his appeal. 2 That was all that was necessary for appellant to do in order to express his interest in appealing his convictions. Appellant never informed appellate counsel that he did not wish to proceed with his appeal. Once appellate counsel was assigned, we 2 It is the usual practice of appellate counsel to submit a letter to the client explaining the appellate process and attaching the financial affidavit to be executed. To suggest that appellant did not know the purpose of the document because it did not contain the word "appeal," as respondent suggests (Respondent's Br., p. 18), is simply unsupported by logic. A copy of appellate counsel's letter to appellant explaining the appeal process, which accompanied the financial affidavit, is available upon request by this Court. 7 were required to perfect the appeal, which we ultimately did by filing a 91-page brief with numerous issues. Respondent suggests that appellate counsel should have made a motion to dismiss appellant's appeal (Respondent's Br., p. 23), yet that would have been in violation of the order of assignment as well as ethical rules, and contrary to appellant's indication to proceed with his appeal. The cases cited by respondent on pages 19-20 and 22 of Respondent's Brief are, with one exception/ appeals of convictions that were based on guilty pleas, in which appellate counsel was required to obtain authorization from the client in order to perfect the appeal since there could be potential consequences involving additional jail time exposure should the appeal succeed and the plea be vacated. See generally People v. Calderon, 107 A.D.3d 470 (1st Dept. 2013) (appellate counsel directed to communicate with appellant "concerning his willingness or unwillingness to seek vacatur of his plea and the possible consequences of pursuing an appeal"). Here, this was a direct appeal of a judgment of conviction after a jury trial, and there were no potential harmful consequences that could arise.4 Contrary to respondent's claim, 3 In the sole case cited by respondent that did not concern a guilty plea, People v. Watson, 77 N.Y.2d 857 (1991), this Court, a court of permissive appellate review, dismissed the appeal after the appellant had full intermediate appellate review of his convictions and was represented in the Appellate Division, Fourth Department, by an attorney who had never been able to locate or contact the defendant. 4 One of appellant's convictions was based upon a plea of guilty which, as respondent correctly points out, was not challenged on appeal. (Respondent's Br., p. 9). 8 appellate counsel was fully authorized by appellant and the court to prosecute the appeal, and in fact, would have been in violation of the order of assignment ifthere was no compliance with that mandate. Respondent states that the attorneys in the cases cited on pages 19-20 of Respondent's Brief were not placed in adversarial positions with their clients, but that is because they were required to get authorization to proceed with the appeals of convictions based upon guilty pleas, due to the potential adverse consequences that could arise should the pleas get vacated. That is an entirely different scenario than researching the basis for a deportation solely to discover if a client may have lost his fundamental right to intermediate appellate review. Respondent states throughout their brief that appellant never sought to appeal his convictions (even though he filed a notice of appeal and filled out a financial affidavit for assignment of counsel on his appeal), and that there was a failure of action to prosecute the appeal (even though appellant filed a 91-page brief with seven separate issues). There was nothing irregular or defective. The appeal was perfected. As an institutional defender, this office regularly represents people lacking in communication skills, including defendants who are homeless, are mentally ill, lack funds for telephonic communication, electronic communication or travel, or are incarcerated and do not wish to communicate for one reason or another. As stated in 9 appellant's main brief, 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, 17N.Y.3dat 680- 81. Respondent claims that this Court would not sanction as "meaningful" the "essentially blind advocacy that is at issue here," and to support that point, cites numerous conduct rules and cases all dealing with trial attorneys (Respondent's Br., p. 21, n.6). On a direct appeal, however, appellate counsel is limited to what is contained in the record,5 and it is possible to write a full appellate brief without any 5 Respondent's argument, that direct appeals are not entirely record-based because appellate courts may have to delve into matters outside of the record on a motion to dismiss the appeal, does not contradict appellant's assertion that the perfection of a direct appeal is entirely 10 input from a client whatsoever. See Ryan v. Gonzales, 133 S.Ct. 696, 705 (2013) ("Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients' assistance"). Indeed, appellate counsel has the ultimate authority as to precisely which issues to raise. See Jones v. Barnes, 463 U.S.745, 751 (1983) (indigent defendant has no '~constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points"); People v. Stultz, 2 N.Y.3d 277,285 (2004) ("[w]hen it comes to the choice of issues, appellate lawyers have latitude in deciding which points to advance and how to order them"); People v. Turner, 5 N. Y.3d 4 76, 484-85 (2005) ("it is often appropriate for an appellate attorney to focus his or her efforts, and the ·appellate court's attention, on a small number of points, and the attorney's selection of those points should not be second-guessed in a coram nobis proceeding"). Here, contrary to respondent's claim that the advocacy was "blind," appellant had expressly stated his intention to appeal, he signed the financial affidavit after having it explained to him, he was appointed assigned counsel by the Appellate Term, record-based. (Respondent's Br., pp. 28-29). Respondent cites People v. Perez, 23 N.Y.3d 89 (2014), yet in that case, the Lopez case was remitted so assigned counsel could look at the record and make record-based submissions to the court, which would then review those submissions for their determination. II and counsel perfected the appeal by filing a comprehensive brief raising seven colorable claims. Appellant's right to intermediate appellate review was thus protected, at least until respondent made the motion to dismiss the appeal. As an institutional defender, we always reach out to our clients but often must perfect the appeal without their input, including when they are here and not deported. Those people should not lose their fundamental right to intermediate appellate review simply because they do not wish to, or are unable to, communicate with appellate counsel after the submission ofthe financial affidavit. Respondent incorrectly takes issue with the cases cited in Appellant's Brief which support the argument that appellate courts should not dismiss as moot the appeals of deported defendants. (Respondent's Br., p. 22, n.7). Respondent claims that Hernandez v. Khahaifa, 2013 U.S. Dist. LEXIS 107560 (S.D.N.Y. 2013), "contains no language at all to suggest that the whereabouts of the defendant in that case was [sic] unknown," yet in the fourth paragraph of that decision, the court clearly states that "Petitioner's precise whereabouts are unknown." Similarly erroneous is respondent's contention that Haywood v. Bureau ofl CE, 3 72 Fed. Appx. 122 (2d Cir. 2010), was a "rejection" of the "scenario" that appellate courts should not dismiss as moot the appeals of deported defendants, when in the fourth paragraph of the decision, the court rejects ''the Government's arguments that the petition is 12 moot because Haywood is not participating in the appeal and could not be notified of a decision in his favor; these considerations do not suffice to render the petition moot." And in Matter ofEdwardo V., 70 Cal. App. 4th 591 (Ct. App. 1999), the court states in the first footnote that the defendant "has been deported, and his counsel has lost contact with him," and "the excellent briefing convincingly establishes that the law does bar a finding of mootness here." Every case cited by appellant for the proposition that appellate courts should not dismiss as moot the appeals of deported defendants directly supports that argument. Respondent asserts that appellant's "lengthy arguments regarding the difficulties experienced by appellate attorneys in trying to determine a defendant's deportation status, or the basis upon which a defendant has been deported[ ... ], bear no relevance to the facts of this case." (Respondent's Br., p. 26, n.9). Respondent's short-sightedness is illustrated here, as appellant included those arguments in order to assist this Court in its potential decision to fashion a new rule regarding making the right of involuntarily deported defendants to intermediate appellate review contingent upon the basis of the deportation, and to point out the difficulties that would be associated with such a rule. Respondent's citation to People v. Reyes, 292 A.D.2d 271 (1st Dept. 2002) (Respondent's Br., p. 28), is misplaced, since that case was decided before Ventura, it cites to cases in which the appellants had already 13 received considered intermediate appellate review, the defendant had agreed to be deported, and the appellate court reached the merits of the case. Here, Ventura reaffirmed the fundamental right of involuntarily deported defendants like appellant to intermediate appellate review of their convictions, even ifthose convictions did not form the basis of the deportation. Contrary to respondent's contention (Respondent's Br., p. 35, n.12), appellant's reliance on United States v. Ashraf, 628 F.3d 813 (2011), is not misplaced, since appellant is not challenging the length ofhis sentence but rather the conviction itself, just as in Ashraf. In Ashraf, the conviction was not the basis of the defendant's deportation, and the appeal was not considered moot upon his deportation because his "contention that his conviction might affect the Attorney General's discretionary decision to allow him back in the country similarly satisfies whatever minimal collateral consequence that Ashraf might be required to show in order for this court to retain jurisdiction over his claim." Ashraf, 628 F.3d at 822. · Respondent cites United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007), for the proposition that appeals of deported defendants who are legally unable to reenter the United States without permission of the Attorney General are moot. (Respondent's Br., p. 35). Yet, this case is distinguishable from the instant matter. In Rosenbaum-Alanis, the appeal was moot because it was an appeal of a federal 14 sentence, and Fed. Rules ofCrim. Proc. rule 43 "requires the defendant to be present and have the opportunity to allocute." Id. at 382. In addition, the court called the possibility of a future waiver of appearance "speculative." Id. at 383. Here, appellant's potential remand does not require his presence, as he could waive his appearance and be represented by his attorney. As previously stated, appellant has already executed a waiver of appearance, so that possibility is not speculative. As stated in appellant's main brief (p. 21), 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. Respondent should want to clear things up while the evidence is still fresh. Urging dismissal causes the evidence to get stale, and then respondent will complain that they have been prejudiced should cases get reinstated years later. Although respondent maintains that appellant is not entitled to intermediate appellate review because "the conviction has no deportation ramifications" (Respondent's Br., pp. 27-28), even they cannot state with absolute certainty that a reversal of appellant's convictions would have no effect on his chances for readmissibility, as they considered that possibility "dubious." (Respondent's Br., p. 24). Furthermore, courts are continuing to find that even civil appeals with collateral 15 consequences are not moot after defendants have been deported. In the past week, the Second Department has joined the First Department in finding that the involuntary deportation of a defendant appealing a SORA level adjudication does not render his appeal moot. See Shim, 2016 N.Y. Slip.Op. 01818; People v. Ibarra, 2016 N.Y. Slip.Op. 02065 (2d Dept. Mar. 23, 2016); Appellant's Br., pp. 14-15. Here, the potential effect of appellant's criminal convictions on possible readmissibility is much more significant. It is ironic that respondent cites People v. Cooper, 98 N.Y.2d 541, 546 (2002), for the proposition that a defendant cannot strip a court's statement of its context in order to fit it into the holding that he desires, for that is exactly what they are doing here. (Respondent's Br., p. 32). The overarching principle of Ventura is that "[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,"' Ventura, 17 N. Y.3d at 682 (quoting People v. Montgomery, 24 N.Y.2d 130, 132 [1969]), a statement which respondent describes as "dictum" and "not necessary to the resolution of the issue presented" in Ventura. (Respondent's Br., p. 17, n.5). The cases cited by respondent for the proposition that deported defendants should have their appeals dismissed since they are unavailable to obey the mandate of the court (Respondent's Br., p. 25) were all 16 decided prior to Ventura, and all had received considered intermediate appellate rev1ew. Here, appellant is in exactly the same position as the defendants in Ventura, who raised dismissal issues, and whose appealed convictions were not the bases for their deportations. There was nothing irregular or defective about this appeal. Appellant sought to appeal his criminal convictions, he took steps in order to preserve his right to appeal and to get counsel assigned to the appeal, and appellate counsel perfected the appeal by filing a comprehensive appellant's brief. This is the precise situation to which Ventura applies; if it is not, then this Court must clarify for appellate courts and practitioners exactly to which situations it does apply. For all of the above-stated reasons, as well as those in appellant's main brief, the Appellate Term erred in violating the mandate of Ventura and dismissing appellant's appeal. The Appellate Term's order dismissing appellant's appeal should be reversed and the appeal reinstated for consideration on the merits. 17 CONCLUSION FOR THE ABOVE STATED REASONS AND THOSE IN APPELLANT'S MAIN BRIEF, 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 18