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

                                - 1 -
                                 - 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


                                 - 2 -
                                 - 3 -                    Nos. 60, 61

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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                               - 4 -                   Nos. 60, 61

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


                               - 4 -
                               - 5 -                     Nos. 60, 61

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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                               - 6 -                     Nos. 60, 61

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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                               - 7 -                    Nos. 60, 61

          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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                                 - 8 -                  Nos. 60, 61

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


                                 - 8 -
                                 - 9 -                   Nos. 60, 61

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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                               - 10 -                   Nos. 60, 61

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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                              - 11 -                   Nos. 60, 61

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.




                              - 11 -
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

                               - 1 -
                               - 2 -                    Nos. 60 & 61

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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                                - 3 -                 Nos. 60 & 61

[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




                                - 3 -
                                 - 4 -                  Nos. 60 & 61

(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.



     1
      The 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.
     2
      Appellate 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"]).

                                 - 4 -
                               - 5 -                   Nos. 60 & 61

           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


                               - 5 -
                                  - 6 -                       Nos. 60 & 61

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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