In People v Ventura (2011 NY Slip Op 07475 [10/25/11]) the Court of Appeals held that it is an abuse of discretion for intermediate appellate courts to dismiss an appeal because of the involuntary deportation of the appellant. The Court explained that
courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that “it [is] essential to any step, on behalf of a person charged with a felony after indictment found, that he should be in custody; either actual . . . or constructive” as “the whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person” (People v Genet, 59 NY 80, 81 [1874]). Accordingly, 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…Here, this policy concern is not present. {Appellant;s] were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation…The 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 (see NY Const Art. 6, ยง 5; see e.g., CPLR 5501 [c]), makes access to intermediate appellate courts imperative…
Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899 [Ct App 2010]). Moreover, 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 participation of defendants.
