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Cite as 857 N.E.2d 47 (N.Y. 2006)

the idea of the defendant being in the

7 N.Y.3d 831 power, and under the control of the court,
The PEOPLE of the State of in his person.’’ Thus, this Court has con-
New York, Respondent, sistently dismissed appeals where a defen-
v. dant has absconded (see People v. Smith,
44 N.Y.2d 613, 407 N.Y.S.2d 462, 378
Jose DIAZ, Appellant. N.E.2d 1032 [1978]; People v. Parmakli-
Court of Appeals of New York. dis, 38 N.Y.2d 1005, 384 N.Y.S.2d 442,
348 N.E.2d 918 [1976] ). Moreover, in
Sept. 19, 2006. People v. Del Rio, 14 N.Y.2d 165, 250
Background: Defendant was convicted in N.Y.S.2d 257, 199 N.E.2d 359 (1964), we
the Supreme Court, New York County, dismissed defendant’s appeal when he vol-
Renee A. White, J., of first-degree gang untarily absented himself from this
assault. Defendant appealed. The Supreme Court’s jurisdiction by consenting to de-
Court, Appellate Division, 21 A.D.3d 58, portation. Although defendant here has
798 N.Y.S.2d 21, affirmed. Defendant ap- been involuntarily deported, he is never-
pealed, and State moved to dismiss. theless unavailable to obey the mandate
Holding: The Court of Appeals held that of this Court. While this absence does
defendant’s absence resulting from invol- not mandate dismissal of the appeal, it
untary deportation warranted dismissal of presents a situation analogous to that of
appeal. mootness (see Smith, 44 N.Y.2d at 617,
Motion granted. 407 N.Y.S.2d 462, 378 N.E.2d 1032). An-
alyzing the relevant factors, we determine
Smith, J., filed dissenting opinion.
that it would be inappropriate under the
circumstances of this case to retain this
Criminal Law O1131(4) appeal.
Defendant’s involuntary deportation In exercising our discretion, we dismiss
warranted dismissal of his appeal of crimi- this appeal without prejudice to defen-
nal conviction, without prejudice. dant’s making a motion to reinstate the
appeal should he return to this Court’s
jurisdiction (cf. People v. Sullivan, 28
N.Y.2d 900, 901, 322 N.Y.S.2d 730, 271
Legal Aid Society, New York City (Che- N.E.2d 561 [1971] [appeal dismissed where
ryl P. Williams and Steven Banks of coun- appellant was ‘‘not presently available to
sel), for appellant. obey the mandate of the court in the event
of an affirmance’’]; People v. Sullivan, 28
Robert M. Morgenthau, District Attor-
N.Y.2d 992, 323 N.Y.S.2d 845, 272 N.E.2d
ney, New York City (Hilary Hassler of
343 [1971] [dismissed appeal reinstated
counsel), for respondent.
upon defendant’s return to custody] ).
R.S. SMITH, J. (dissenting).
MEMORANDUM. Defendant was convicted of gang assault
The appeal should be dismissed without in the first degree, and the Appellate Divi-
prejudice. As stated in People v. Genet, sion affirmed his conviction. He claims
59 N.Y. 80, 81 (1874), ‘‘[t]he whole theory that he did not have a fair trial, and a
of S 832criminal proceedings is based upon Judge of this Court found enough sub-

stance in that claim to justify granting the maximum a life term, and that he
leave to appeal. Defendant has now been had been released from prison on parole
deported, and the People have moved to and deported by the United States Im-
dismiss the appeal. Defendant, through migration Service to his native Cuba.
counsel, opposes the motion; in other ‘‘Later, when defendant’s application for
words, defendant continues to ask us to vacatur of the dismissal was presented
vindicate what he says are his constitution- to us, we were told (mistakenly, as it
al rights. There is no indication that de- now appears) that defendant had ‘never
fendant’s absence from the jurisdiction is executed any waiver, consent, applica-
voluntary. tion or other request for commutation’
I do not agree that, under these circum- or agreed to his removal from prison
stances, the Court has ‘‘discretion’’ wheth- and from the United States and that ‘the
er to hear defendant’s appeal or not. Once first notice that he had of his deporta-
leave to appeal has been granted, defen- tion was at approximately 3:00 o’clock in
dant has a right to have his appeal decid- the afternoon that he was deported.’
ed, unless he has, by absconding or by We set aside the dismissal and put the
some other voluntary act, furnished a good appeal back on our calendar.
reason for depriving him of that right ‘‘However, as we now learn, we acted on
(People v. Del Rio, 14 N.Y.2d 165, 250 an erroneous statement of alleged facts.’’
N.Y.S.2d 257, 199 N.E.2d 359 [1964] ). (Id. at 166–167, 250 N.Y.S.2d 257, 199
In Del Rio, we dismissed the appeal of a N.E.2d 359.)
defendant who had been deported to Cuba Defendant here is in the position that we
following the commutation of his had mistakenly believed the Del Rio defen-
S 833sentence. We did so, however, only af- dant to be in—he was deported without, as
ter examining the facts carefully and con- far as appears from this record, any coop-
cluding that the defendant had voluntarily eration on his part. We should hear his
agreed to leave the United States and appeal, as we would have heard the Del
never to return. We held that by doing so Rio defendant’s appeal if his departure
defendant had ‘‘abandoned the appeal and had been involuntary.
deliberately TTT waived and foregone his The majority says that defendant is ‘‘un-
right to have the appeal heard and decid- available to obey the mandate of this
ed’’ (id. at 168, 250 N.Y.S.2d 257, 199 Court’’ but does not say what possible
N.E.2d 359). ‘‘mandate’’ it refers to. Assuming we af-
Del Rio leaves no doubt that, if the firm defendant’s conviction, that cannot
defendant’s deportation had been involun- and will not undo his deportation or re-
tary, he would have retained ‘‘his right to quire him to serve more time in a New
have the appeal heard and decided.’’ This York prison; there will thus be no
is apparent from our summary of the his- S 834‘‘mandate’’ for him to obey. Thus, the
tory of the case: majority is apparently concerned about
‘‘On October 3, 1963 TTT we granted a compliance with our ‘‘mandate’’ if we
motion made by the People to dismiss should reverse defendant’s conviction and
the appeal for ‘mootness’ on a showing order a new trial. The majority assumes
that defendant had left the United that defendant is de facto a fugitive, that
States for Cuba, that his sentence had to grant him a new trial would be an
been commuted so that the minimum exercise in futility since he will not appear
would be the time already served and at it, and thus that the case is for practical
Cite as 857 N.E.2d 49 (N.Y. 2006)

purposes moot. The unspoken premise of

the majority’s decision is that, now that 7 N.Y.3d 838

defendant has been deported, he will nev- The PEOPLE of the State of
er, at least voluntarily, be seen or heard New York, Respondent,
from by the New York courts again.
This may well be true, in this and in Patricio BAUTISTA, Appellant.
most other cases where a defendant has
been deported, but we should not simply Court of Appeals of New York.
assume it. Defendant has asked us for a Sept. 21, 2006.
new trial, and has not by any voluntary act
Background: In a drug prosecution, de-
made a retrial difficult or impossible. He
fendant moved to be resentenced pursuant
is entitled to have us assume, absent con-
to the 2005 Drug Law Reform Act. The
trary evidence, that he in fact wants a
Supreme Court, New York County, Micki
retrial, and will cooperate in any way nec-
A. Scherer, J., denied the motion. On re-
essary if his conviction is reversed and the
view, the Supreme Court, Appellate Divi-
People seek to retry him. While it would
sion, 26 A.D.3d 230, 809 N.Y.S.2d 62, af-
be perfectly reasonable to inquire into the
firmed, and defendant appealed.
facts—to ask defense counsel, for example,
to communicate with defendant and to get Holding: The Court of Appeals held that
his assurance that he is not abandoning his provision of the 2005 Drug Reform Act
appeal and will cooperate with any neces- permitting an appeal to be taken as of
sary future proceedings—I think it inap- right from an order denying resentencing
propriate to presume with no proof that a did not authorize, in addition to an appeal
litigant, simply because he is a deportee, is as of right to the intermediate appellate
contemptuous of or indifferent to the court, an appeal to the Court of Appeals
Court’s processes. by permission.
Appeal dismissed.
Chief Judge KAYE and Judges G.B.
GRAFFEO and READ concur. Appeals in criminal cases are strictly
limited to those authorized by statute.
Judge R.S. SMITH dissents and votes
to deny the motion to dismiss in an 2. Criminal Law O1023(14)
opinion. Order denying an application for re-
Motion to dismiss appeal granted and sentencing is not equivalent to an appeal-
appeal dismissed, in a memorandum. able sentence, or to an order denying a
motion to set aside a sentence. McKin-
ney’s CPL §§ 440.20, 450.15(2).

3. Criminal Law O1072

Provision of the 2005 Drug Reform
Act permitting an appeal to be taken as of
right from an order denying resentencing
did not authorize, in addition to an appeal
as of right to the intermediate appellate
court, an appeal to the Court of Appeals