Basils1592359

Prior to a recent New York Court of Appeals decision, New York Courts were generally inclined to dismiss criminal appeals as moot where the defendant had been deported. The New York Court of Appeals, however, recently held that the right to a criminal appeal was fundamental, even where the defendant has already been deported. The Court found that intermediate appellate review was essential to the constitutional and statutory design in New York intended to afford review to each criminal appeal. In New York the Appellate Divisions (intermediate appellate courts) have an important and distinct role to play in the hierarchy of appellate review. The Appellate Divisions, unlike the Court of Appeals (New York's highest court) are empowered to review both questions of law and questions of fact. The unique power of factual review of the Appellate Divisions in New York is the cornerstone to an essential statutory and constitutional right in every criminal appeal: the defendant-appellant's right to have the facts of his/her case reviewed on appeal at least once. This fact-finding function also gives the Appellate Divisions the singular ability to reach issues that were unpreserved in the trial courts in the interests of justice. This new holding by the New York Court of Appeals will have important ramifications for defendants that have direct appeals pending. However, it is not clear what it will mean for those who have cases on collateral review - 440 motions, habeas corpus petitions and coram nobis petitions - and whether they will also be afforded the same consideration by the appellate courts. In a recent case the New York Court of Appeals held that for three reasons it is an abuse of discretion to dismiss a criminal appeal where the defendant has been deported. First, the involuntarily deported non-citizen defendants have a great need for their appeals to be heard because of the tremendous ramifications of deportation; second, every criminal defendant possess a statutory right to intermediate appellate review; and third, in other jurisdictions, involuntarily deported non-citizens who continue prosecution of their appeals through an appellate New York criminal lawyer are not deemed unavailable to obey the mandates of the courts in New York. The Court of Appeals reasoned that generally, courts have been inclined to dismiss appeals when the defendant was absent voluntarily or absconded from the jurisdiction, thus, forfeiting their right to appeal. This was because it was essential that a person charged with a felony after indictment be in custody, either actual or constructive, so that the defendant is within the power, and under the control of the court. Consequently, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals However, in a recent case the Click Here found that where a defendant was involuntarily removed from the country and the absence from the jurisdiction was not purposeful or an attempt to evade the appeals process in New York, such defendants have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation. This new holding by the New York Court of Appeals will have important ramifications for defendants that have direct appeals pending. However, it is not clear what it will mean for those who have cases on collateral review - 440 motions, habeas corpus petitions and coram nobis petitions - and whether they will also be afforded the same consideration by the appellate courts.