This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 60 

The People &c.,

 Respondent,

 v.

Andre Harrison,

 Appellant.

-----------------------

No. 61 

The People &c.,

 Respondent,

 v.

Marino Serrano, 

 Appellant.

Case No. 60:

Lisa Napoli, for appellant.

Deborah E. Wassel, for respondent.

Immigrant Defense Project, amicus curiae.

Case No. 61:

Amy Donner, for appellant.

Joyce Slevin, for respondent.

Immigrant Defense Project, amicus curiae.

FAHEY, J.:

In People v Ventura (17 NY3d 675 [2011]), we held that

the Appellate Division abused its discretion in dismissing two

pending direct appeals due to the involuntary deportations of the

defendants. In the present appeals, we are asked to clarify

Ventura's application. We hold that Ventura prohibits

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- 2 - Nos. 60, 61

intermediate appellate courts from dismissing pending direct

appeals due to the defendant's involuntary deportation,

regardless of the contentions raised by the defendant on appeal. 

We conclude, however, that, consistent with this Court's

authority to dismiss pending permissive appeals due to the

defendant's involuntary deportation, intermediate appellate

courts retain their discretionary authority to dismiss permissive

appeals on that ground after Ventura. 

I. 

Defendant Andre Harrison, a citizen of Jamaica, was

convicted, upon his plea of guilty, of attempted criminal

possession of a weapon in the second degree. After serving his

sentence, he was transferred into the custody of U.S. Immigration

and Customs Enforcement (ICE). While in ICE custody, Harrison

moved pursuant to CPL 440.10 to vacate the judgment, alleging,

among other things, that his attorney gave him erroneous advice

about the immigration consequences of his guilty plea. Supreme

Court denied Harrison's motion without a hearing. Harrison

sought leave to appeal to the Appellate Division pursuant to CPL

460.15. A Justice of that court granted Harrison's application. 

While Harrison's permissive appeal was pending in the Appellate

Division, he was deported. The People moved to dismiss the

appeal on the ground that Harrison was no longer available to

obey the mandate of the court. 

The Appellate Division granted the People's motion to

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dismiss Harrison's appeal (115 AD3d 980 [2d Dept 2014]),

distinguishing Ventura on two grounds. First, the court noted

that in Ventura, the defendants had raised issues that would

result "in either an affirmance or outright dismissal of the

convictions," neither of which would require the defendants'

further legal participation, whereas if Harrison were successful

on appeal, his further legal participation would be required (id.

at 982). Second, the Appellate Division reasoned that in

Ventura, this Court considered the dismissal of two direct

appeals, but Harrison was appealing by permission (see id. at

981-982). A Judge of this Court granted Harrison leave to appeal

(24 NY3d 1084 [2014]). 

Defendant Marino Serrano, a citizen of Mexico, pleaded

guilty to driving while intoxicated and driving while ability

impaired. While his direct appeal was pending before the

Appellate Term, Serrano was deported. The People moved to

dismiss the appeal on the ground that Serrano was unavailable to

obey the mandate of the court. 

The Appellate Term granted the People's motion to

dismiss Serrano's direct appeal (45 Misc 3d 69 [App Term, 2d

Dept, 11th & 13th Jud Dists 2014]). The court concluded that

Serrano's contention that the plea colloquy was insufficient had

merit (see id. at 71-72). The court nevertheless dismissed

Serrano's direct appeal, holding that Ventura was

distinguishable. The Appellate Term noted that in Ventura, the

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defendants raised appellate issues that would result in " 'either

an affirmance or outright dismissal of the convictions; neither

outcome would require the continued legal participation of [the]

defendants' " (id. at 72, quoting Ventura, 17 NY3d at 682). By

contrast, Serrano raised an appellate issue that, if meritorious,

would require his continued legal participation, "which is not

possible because he has been deported" (45 Misc 3d at 72). A

Judge of this Court granted Serrano leave to appeal (25 NY3d 953

[2015]). 

II. 

In Ventura, this Court considered whether the Appellate

Division had abused its discretion in dismissing two direct

appeals. Both defendants, Ventura and Gardner, had been

involuntarily deported while their direct appeals were pending. 

We held that cases in which appellate courts had dismissed

appeals because the defendant had voluntarily absconded from the

jurisdiction were inapposite, inasmuch as Ventura and Gardner

were involuntarily deported, and "their extrication lacked the

scornful or contemptuous traits that compel courts to dismiss

appeals filed by those who elude criminal proceedings" (Ventura,

17 NY3d at 679-680). We reiterated that CPL 450.10 granted the

defendants "an absolute right to seek appellate review of their

convictions" (id. at 679, citing People v Montgomery, 24 NY2d

130, 132 [1969]). 

We further distinguished this Court's own discretion to

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dismiss pending permissive appeals on the ground of involuntary

deportation, reasoning that "[t]he 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" (Ventura, 17 NY3d at 680-681). We

"acknowledge[d] the broad authority of the intermediate appellate

courts to dismiss pending appeals," but we held that "this

discretionary power cannot be accorded such an expansive view as

to curtail defendants' basic entitlement to appellate

consideration" (id. at 681-682). We concluded 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' " (id. at 682, quoting Montgomery, 24 NY2d

at 132). 

Finally, we noted that "in our view, the perceived

inability to obey the mandate of the court is not implicated

here" (Ventura, 17 NY3d at 682). We observed 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" (id.). The Court

further noted that "disposition of the discrete appellate issues

would result in either an affirmance or outright dismissal of the

convictions; neither outcome would require the continued legal

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participation of defendants" (id.). 

This last sentence of the Court's decision in Ventura

provides the sole basis upon which the Appellate Term

distinguished Serrano from Ventura in dismissing Serrano's

pending direct appeal. The Appellate Term concluded that because

Serrano's further legal participation would be required if he

were successful on appeal, the holding of Ventura did not apply

(see Serrano, 45 Misc 3d at 72). We disagree.

The fact that Ventura and Gardner were raising

appellate issues that would result in either an affirmance or

outright dismissal was not a necessary predicate to the Court's

holding in Ventura, but rather an additional reason supporting

the Court's conclusion that the Appellate Division had abused its

discretion in dismissing the direct appeals. The Court's holding

in Ventura was based upon the fundamental right to a direct

appeal to the intermediate appellate courts granted to all

criminal defendants by CPL 450.10. We now clarify that Ventura

applies to all direct appeals pending in intermediate appellate

courts, regardless of the appellate contentions raised by the

defendant. The Appellate Term's interpretation of Ventura would

discourage non-citizen defendants from raising on direct appeal

potentially meritorious contentions that would not result in

outright dismissal. We cannot countenance a result that would so

impair a criminal defendant's "fundamental right" to a direct

appeal pursuant to CPL 450.10 (Ventura, 17 NY3d at 680). 

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We do not discount the People's arguments about the

practical difficulties that may arise if a judgment is reversed

on appeal and the defendant's further legal participation is

required, for example to enter a guilty plea or to stand trial,

but the defendant is unable to return to the country. Resolution

of those issues must be left to the trial court and the parties,

and will depend upon the unique circumstances of each case, as

well as the immigration status of each defendant. 

In addition, we reject the People's contention in

Serrano that the Appellate Term did not abuse its discretion in

dismissing the appeal because Serrano's conviction did not cause

his deportation. Our holding in Ventura did not depend upon any

causal relationship between the defendant's conviction and

deportation, and the Appellate Term did not distinguish Serrano

from Ventura on that ground. 

In summary, we conclude that this Court's holding in

Ventura prohibits an intermediate appellate court from exercising

its discretion to dismiss a pending direct appeal on the ground

that the defendant has been involuntarily deported, regardless of

the appellate contentions raised by the defendant. The Appellate

Term therefore abused its discretion in dismissing Serrano's

direct appeal. 

III. 

We reach a different conclusion with respect to the

Appellate Division's dismissal of Harrison's pending permissive

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appeal. Our holding in Ventura was based upon a criminal

defendant's fundamental right to a direct appeal granted by CPL

450.10. That statute has no application, however, in the context

of permissive appeals. Rather, CPL 450.15 governs an appeal from

an order denying a CPL 440.10 motion to vacate a judgment, and

provides that a certificate granting leave to appeal must be

obtained pursuant to CPL 460.15 (see CPL 450.15 [1]). In

Ventura, this Court spoke of a criminal defendant's "absolute

right," "statutory right," "fundamental right," and "basic

entitlement" to appellate consideration of a direct appeal

(Ventura, 17 NY3d at 679-682). A defendant has no such

fundamental right or basic entitlement to appeal where the

defendant must seek permission to appeal to the intermediate

appellate court pursuant to CPL 450.15. 

Indeed, we reaffirmed in Ventura our own discretionary

authority to dismiss permissive appeals pending before this Court

on the ground that the defendant has been involuntarily deported. 

We held that in People v Diaz (7 NY3d 831 [2006]) and other cases

in which this Court had dismissed a pending appeal on the ground

of involuntary deportation, "the defendants had already received

considered intermediate appellate review, in satisfaction of

their statutory right," and that this Court, "as a court of

permissive appellate jurisdiction," had the discretion to dismiss

those appeals (Ventura, 17 NY3d at 680). Similarly, in Harrison,

the Appellate Division was acting "as a court of permissive

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appellate jurisdiction" (id.). Where an intermediate appellate

court has permissive jurisdiction over a pending appeal, the

intermediate appellate court retains its discretion to dismiss

the pending permissive appeal due to the defendant's involuntary

deportation. 

The dissent conflates the right to a direct appeal with

a discretionary appeal from an order denying a CPL 440.10 motion

in analogizing this case to Ventura. As we held in Ventura,

Harrison had an absolute right to a direct appeal; he waived that

right as part of his plea agreement. He later brought the

present motion claiming ineffective assistance of counsel. Such

claims are generally properly raised for the first time through

CPL 440.10 motions. The dissent claims that in these

circumstances, "[d]efendant . . . has not had any appellate

review of his claim" (dissenting op., at 2). If that were the

standard -- entitlement to one appeal, whether direct or

collateral -- all such CPL 440.10 motions following a plea of

guilty and waiver of direct appeal would require Appellate

Division review. This is not the standard, however, inasmuch as

CPL 450.15 (1) provides that appeals from orders denying CPL

440.10 motions are permissive. 

To say that an abuse of discretion occurred because the

Appellate Division had already accepted the appeal contradicts

the reasoning of our decision in Diaz. There, as the Appellate

Division did here, this Court permissively granted leave to

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appeal (see People v Diaz, 5 NY3d 852 [2005]). Nearly one year

later, we exercised our discretion and dismissed the appeal,

concluding that the defendant's involuntary deportation in the

interim presented a situation "analogous to that of mootness"

(Diaz, 7 NY3d at 832). The Appellate Division had similar

discretion in this case. The holding of Ventura does not compel

us to limit the Appellate Division's discretion such that the

Appellate Division may not dismiss a pending permissive appeal

based upon " 'the perceived inability to obey the mandate of the

court' " (dissenting op., at 3, quoting Ventura, 17 NY3d at

682). The holding in Ventura was based upon the right to a

direct appeal which could not be defeated based upon that

concern. In Harrison, as in Diaz, there was no such right to

appeal, and the Appellate Division retained its discretion to

dismiss the appeal.

Of course, the intermediate appellate court's exercise

of that discretion remains reviewable by this Court for abuse of

discretion as a matter of law. There are circumstances in

Harrison that would have supported the Appellate Division's

retention of the appeal, including that Harrison was raising a

contention that could only be raised by way of a CPL 440.10

motion, and the People did not dispute that Harrison had been

deported because of the conviction he was challenging in that

motion. Nevertheless, unlike the Appellate Division, which may

substitute its own discretion for that of the nisi prius court

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even absent an abuse of discretion, we have no power to

substitute our own discretionary judgment for that of the

Appellate Division (see generally People v Guay, 18 NY3d 16, 22

[2011]). We may reverse the discretionary determination of the

Appellate Division only if its exercise of discretion was so

arbitrary or unreasonable as to constitute an abuse of discretion

as a matter of law (see NY Const, art VI, § 3 [a]). Here, we

cannot conclude that the Appellate Division abused its discretion

as a matter of law in dismissing Harrison's pending permissive

appeal due to his involuntary deportation. 

Accordingly, in Harrison, the order of the Appellate

Division should be affirmed and, in Serrano, the order of the

Appellate Term should be reversed, and the case remitted to the

Appellate Term for consideration of the merits of the appeal to

that court.

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People v Andre Harrison, People v Marino Serrano

No. 60, 61 

RIVERA, J.(dissenting in People v Andre Harrison; concurring in

People v Marino Serrano):

I agree with the decision in People v Serrano, for the

reasons set forth in the opinion. However, I dissent in People v

Harrison because the majority relies on a meaningless distinction

between two classes of defendants who have had their respective

appeals dismissed, solely on the grounds that they have been

deported: one who files a direct appeal challenging the

conviction, and another, like Harrison, who files a 440.10 motion

claiming the plea was not knowing, voluntary, and intelligent

because defense counsel failed to properly explain the

immigration consequences of the plea. However, the two classes

of defendants are similarly positioned and therefore the rule of

People v Ventura should apply with full force in both cases.

The majority concludes that because the latter class of

defendants seeks review under CPL 450.15 and 460.15, Ventura is

inapplicable and instead the appeal is subject to the reasoning

in People v Diaz. This view ignores critical aspects of the

rationale that led the Court in Ventura and its companion case,

People v Gardner, to reject application of the justification for

dismissing an appeal where a defendant evades criminal process to

cases involving an involuntarily deported defendant (People v

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Ventura, 17 NY3d 675, 680-681 [2011]). Elaborating on the unique

concerns impacting on deportees, the Court stated that they "have

a great[] need to avail themselves of the appellate process in

light of the tremendous ramifications of deportation" (id. at

680). These defendants risked "the complete lack of intermediate

appellate review" if their appeals were dismissed solely on the

grounds that they were deported (id.). Given the right to appeal

and the "distinct role assumed by the Appellate Divisions within

New York's hierarchy of appellate review . . . [,] access to

intermediate appellate courts [is] imperative" (id.). Like the

defendants in Ventura, defendant here was also involuntarily

deported and did not intentionally seek to avoid criminal

process. To the contrary, he has affirmatively sought judicial

review of his claim throughout his detention and after his

deportation. Defendant too faces dire consequences related to

his deportation, including separation from his family and home.

In contrast, the analysis of Diaz is ill-suited for

deciding defendant's case. Diaz involved a defendant who "had

already received considered intermediate appellate review"

(Ventura, 17 NY3d at 680; People v Diaz, 7 NY3d 831, 832 [2006]). 

Defendant here has not had any appellate review of his claim

because under New York law his 440.10 motion is his only

procedural vehicle to challenge his plea based on his counsel's

alleged ineffective assistance in providing erroneous advice

(majority op., at 10; People v Baret, 23 NY3d 777, 806 [2014]

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[Lippman, C.J., dissenting]). 

Further, the Court in Diaz exercised its discretion in

dismissing because the defendant was unavailable to obey the

mandate of the Court (7 NY3d at 832). As Ventura made clear, at

least for intermediate appellate review, "the perceived inability

to obey the mandate of the court is not implicated" (17 NY3d at

682). Thus, Diaz has little relevance to defendant's case. 

Moreover, both the Courts in Ventura and Diaz recognized that

deportation does not, in and of itself, mandate dismissal (Diaz,

7 NY3d at 832 [deportation did "not mandate dismissal of the

appeal, (but) present(ed) a situation analogous to that of

mootness"]; Ventura, 17 NY3d at 682 [inability to obey court's

mandate not implicated by defendants' deportation, and provides

no basis to dismiss appeal]).

Contrary to the majority's view, I do not conflate the

right to a direct appeal with a discretionary appeal (see

majority op., at 9), but rather ground my analysis on the 

underlying reasoning and purpose served by this Court's decision

in Ventura. Here, because of the specific nature of defendant's

ineffective assistance of counsel claim it cannot be reviewed on

direct appeal. As a consequence, dismissal places defendant at

risk, like the defendants in Ventura, of a "complete lack of

intermediate appellate review," due solely to his deportation

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(Ventura, 17 NY3d at 680).1 Therefore, Ventura, not Diaz, is

relevant to our consideration of defendant's claim.

Nor does my interpretation of Ventura mean that the

Appellate Division is without discretionary authority to dismiss

an appeal from an unsuccessful CPL 440.10 motion based on the

same concerns that the court generally fixes with respect to such

post-conviction motions.2 Such a broad rule is not implicated by

this case, or necessary to resolve the issues raised herein. 

Rather than require an intermediate court to consider a

discretionary appeal solely because a defendant is deported, the

appropriate rule, in accordance with Ventura, is that an

intermediate appellate court may not refuse to consider an appeal

for no reason other than defendant's status as a deportee.

1The majority is incorrect to the extent it suggests that a

defendant's waiver of appeal forecloses direct appellate review

of any and all claims because this Court has held that certain

claims are not waivable (see e.g. People v Seaberg, 74 NY2d 1, 9-

10 [1989] [constitutional speedy trial claims, challenges to the

legality of court-imposed sentences or the voluntariness of the

plea, and questions as to a defendant's competency to stand trial

survive a valid waiver of appellate review]). In any event,

under New York law defendant's only procedural vehicle for

challenging the plea based on ineffective assistance of counsel

is a post-conviction CPL 440 motion, and he did not waive his

right to pursue such relief.

2Appellate courts retain broad authority under CPL 470.60

(1) to dismiss an appeal on a basis other than deportation (see

CPL 470.60 [1] [providing for dismissal "upon the ground of

mootness, 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"]).

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We should not lose sight of the fact that defendant

sought, by his 440.10 motion, to avoid the deportation that now

prevents his appeal and holds his challenge in abeyance until he

is able to return to the United States. Although the majority

concludes the Appellate Division did not abuse its discretion by

dismissing defendant's appeal, in Ventura both the majority and

dissent agreed that it was an abuse of discretion for an

appellate intermediate court to dismiss a deported defendant's

appeal on the sole basis of the defendant's unavailability where

the conviction being appealed was the cause of defendant's

deportation (Ventura, 17 NY3d at 678; id. at 682 [Read, J.,

dissenting]).

Beyond the apparent consequences to defendant from this

proverbial "Catch-22", there is another compelling fairness

argument that looms large over this case. Defendant was in the

custody of the Immigration and Customs Enforcement Unit of the

United States Department of Homeland Security awaiting

deportation on the grounds of his conviction, when a justice of

that court granted leave to appeal. Defendant remained in

federal custody for another 16 months, awaiting consideration of

his appeal, until he was eventually deported. As the record

discloses, but for the delays in the appellate process, the

Appellate Division would have considered his challenge to the

plea. Under these circumstances, it was an abuse of discretion

to dismiss the appeal because the very action defendant sought to

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prevent by challenging his conviction was the basis of the

Appellate Division's dismissal. Nevertheless, defendant and

others similarly situated, who have no control over the delays

that may doom their appeals, are now foreclosed from intermediate

appellate review because they have been deported. Therefore, I

dissent.

* * * * * * * * * * * * * * * * *

For Case No. 60: Order affirmed. Opinion by Judge Fahey. Chief

Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein and Garcia

concur. Judge Rivera dissents in an opinion.

For Case No. 61: Order reversed and case remitted to the

Appellate Term, Second Department, for consideration of the

merits of the appeal to that court. Opinion by Judge Fahey. 

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam,

Stein and Garcia concur, Judge Rivera in a concurring opinion.

Decided May 5, 2016

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