| People v Harrison |
| 2014 NY Slip Op 02076 [115 AD3d 980] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andre Harrison, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant, by permission, as limited by his brief, from so much of anorder of the Supreme Court, Queens County (Chin-Brandt, J.), dated March 16, 2011, asdenied that branch of his motion which was pursuant to CPL 440.10 to vacate ajudgment of the same court rendered June 8, 2008, convicting him of attempted criminalpossession of a weapon in the second degree, upon his plea of guilty, on the ground thathe was deprived of the effective assistance of counsel as a result of his attorney'sallegedly erroneous advice regarding the immigration consequences of his plea.
Motion by the respondent to dismiss the appeal on the ground that the appellant hasbeen deported and is unavailable to obey the mandate of the court.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is,
Ordered that the motion is granted and the appeal is dismissed, without costs ordisbursements, and without prejudice to a motion to reinstate the appeal should he returnto this Court's jurisdiction.
On May 8, 2008, the defendant, a native of Jamaica and a lawful permanent residentof the United States, pleaded guilty to attempted criminal possession of a weapon in thesecond degree. On June 8, 2008, the defendant was sentenced in accordance with theplea agreement. Thereafter, the Immigration and Customs Enforcement Unit of theUnited States Department of Homeland Security initiated removal proceedings againstthe defendant on the ground that the conviction was a deportable offense.
In July 2010, the defendant, acting pro se, moved pursuant to CPL 440.10 to vacatehis conviction, inter alia, on the ground that he was denied the effective assistance ofcounsel as a result of his attorney's allegedly erroneous advice regarding the immigrationconsequences of his plea. In an order dated March 16, 2011, the Supreme Courtsummarily denied the motion, concluding that the defendant failed to demonstrate that hewas prejudiced by his attorney's allegedly erroneous advice. In a decision and order onapplication dated July 8, 2011, this Court granted the [*2]defendant leave to appeal from the order dated March 16,2011.
On November 30, 2012, prior to oral argument, the defendant was deported to hisnative country. The People moved to dismiss the appeal on the ground that the defendantis no longer available to obey the mandate of the court.
CPL 470.60 (1) provides: "At any time after an appeal has been taken and beforedetermination thereof, the appellate court in which such appeal is pending may, uponmotion of the respondent or upon its own motion, dismiss such appeal upon the groundof mootness, lack of jurisdiction to determine it, failure of timely prosecution orperfection thereof, or other substantial defect, irregularity or failure of action by theappellant with respect to the prosecution or perfection of such appeal."
In People v Diaz (7NY3d 831 [2006]), after the Court of Appeals had previously granted a criminaldefendant leave to appeal from an order of the Appellate Division affirming thatdefendant's judgment of conviction, the Court dismissed the appeal in the exercise of itsdiscretion on the ground that the defendant had been involuntarily deported and, thus,unavailable to obey the mandate of the Court, without prejudice to the defendant's rightto move to reinstate the appeal should he return to the Court's jurisdiction (see id.at 831-832).
On the other hand, in People v Ventura (17 NY3d 675 [2011]), the Court ofAppeals determined that the Appellate Division abused its discretion in dismissing directappeals by two defendants from their judgments of conviction on the ground that theywere involuntarily deported (see id. at 678). The Court of Appeals in Venturanoted that, at the time of the dismissals of their appeals, the defendants in that casewere appealing pursuant to their statutory right to appeal their judgments of conviction toan intermediate appellate court (see id. at 679-680; see CPL 450.10 [1]).By contrast, the Court of Appeals in Ventura noted that, at the time his appealwas dismissed, the defendant in Diaz was appealing to the Court of Appealspursuant to its permissive appellate jurisdiction (see id. at 680). The Court ofAppeals in Ventura also noted that because the two defendants in that case wereonly raising legal sufficiency and weight-of-the-evidence arguments on their appeals,disposition of the appeals would result in either an affirmance or outright dismissal of theconvictions, and neither outcome would require the continued legal participation of thedefendants (see id. at 682). Thus, the Court of Appeals stated that the perceivedinability to obey the mandate of the court was not implicated in that case (seeid.).
Here, the defendant is not directly appealing from his judgment of conviction as ofright pursuant to CPL 450.10 (1) but, rather, is appealing, by permission, from an orderdenying his motion to vacate his conviction (see CPL 450.15 [1]). Further, if theorder were to be reversed, the defendant's motion to vacate his conviction granted, andhis plea of guilty vacated, the defendant's continued participation in the proceedingswould be required. Accordingly, this case is distinguishable from Ventura.Considering all of the particular circumstances of this case, we deem it appropriate togrant the People's motion and dismiss the appeal, without prejudice to a motion toreinstate the appeal should he return to this Court's jurisdiction (see People vMark, 8 NY3d 907 [2007]). Skelos, J.P., Balkin, Lott and Hinds-Radix, JJ., concur.