New York’s highest court held that it is improper to dismiss a criminal appeal based solely on the fact that the appellant was deported while the appeal was pending. People v. Ventura, No. 160 & People v. Gardner, No. 161, slip op. (NY Ct. App. Oct. 25, 2011). Justice Jones wrote the majority opinion, joined by Justices Lippman, Ciparick, and Smith. Justice Read dissented in Ventura and concurred in Gardner; Read’s opinion was joined by Justices Pigott and Graffeo.
These cases involve individuals who were convicted and filed timely appeals in the state intermediate court. While that appeal was pending, both individuals were deported. The state prosecutors then moved to dismiss the appeals on the basis that the defendants were unavailable to obey the court’s mandate. The intermediate appellate court, known as the Appellate Division, granted the motions to dismiss. Ventura, slip op. at 2-3.
The state high court, known as the Court of Appeals, found dismissal to be in error. Both appellants, the court noted, “had an absolute right to seek appellate review of their convictions.” Ventura, slip op. at 3. This absolute right is rooted in notions of “fundamental fairness.” Ventura, slip op. at 7. Maintaining access to appellate review, therefore, is “imperative.” Ventura, slip op. at 6.
Though dismissal of a pending appeal is appropriate in some circumstances, those instances are generally limited to where defendants “voluntarily absconded, forfeiting their right to appeal.” Ventura, slip op. at 4. Neither appellant here could be said to have voluntarily absconded. As the majority explained, “Ventura and Gardner were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings.” Ventura, slip op. at 5.
Accordingly, the majority concluded that the intermediate court improperly dismissed these appeals. Ventura, slip op. at 8.
The justices who wrote separately did so in large part because they would require a “causal connection” between the conviction whose appeal was dismissed and the adverse immigration consequence (deportation or exclusion). Ventura, slip op. at 2 (Read, J., dissenting in part and concurring in part). “[T]he Appellate Division should be able to decide not to spend its time on an appeal whose outcome would have no practical effect because the defendant had been deported from this country and enjoys no discernible prospects for reentry.” Ventura, slip op. at 7.
Justice Read determined that Gardner’s dismissed appeal is the cause of his deportation. Ventura, slip op. at 5. Even though Gardner overstayed his visa, as Justice Read explained, he was potentially eligible for adjustment of status through his U.S. citizen wife. Ventura, slip op. at 6. As such, Justice Read concurred with the majority concerning Gardner. Ventura, slip op. at 5.
Justice Read was not convinced that a causal connection exists in Ventura’s case. Indeed, Justice Read implied that another conviction might be the basis for Ventura’s deportation “or would prevent or complicate his return to the United States.” Ventura, slip op. at 6.
The court did not explain how DHS deported these individuals while an appeal was pending given the Second Circuit’s position that an appeal “suspends an alien’s deportability.” Walcott v. Chertoff, 517 F.3d 149, 155 (2nd Cir. 2008). Given how frequently DHS transfers detainees around the country, it is possible that they were not in the Second Circuit when removed.