Associated Press - New York: New York's top court ruled Tuesday that two immigrants who had been in the United States legally are entitled to appeal criminal convictions even though they've been deported after being released from jail.
Carlos Ventura and Damian Gardner were turned over to U.S. Immigration and Customs Enforcement, which sent Ventura back to the Dominican Republic in 2008. Gardner was deported to Jamaica in 2009.
A midlevel court dismissed Ventura's appeal, saying he was unavailable to fight the case. It likewise rejected the appeal of Gardner. Both had claimed there was insufficient evidence to support their convictions in Queens.
The Court of Appeals on Tuesday ordered reviews of both cases on the merits, noting they were unlike those where defendants forfeit their appeal rights by running away.
"Ventura and Gardner had an absolute right to seek appellate review of their convictions," Judge Theodore Jones Jr. wrote. He cited the New York statute that codifies a criminal defendant's common law right to appeal to an intermediate court.
Ventura was convicted of stealing a car, a felony, following his 2005 arrest. Gardner was arrested in 2006 and convicted of misdemeanor drug possession.
The top court, divided 4-3, concluded that the midlevel Appellate Division "abused its discretion" in following precedent and dismissing appeals by absent defendants, here two who had no choice about it.
"Ventura and Gardner 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," Jones wrote. "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."
Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick and Robert Smith agreed. Smith also wrote that in other jurisdictions absent defendants are not considered unavailable or to answer court mandates when they have lawyers present.
In her dissent, Judge Susan Read wrote the majority's new rule was too broad, stripping the midlevel court's discretion under state law to dismiss a pending criminal appeal. Judges Victoria Graffeo and Eugene Pigott Jr. concurred with Read.
Read agreed that Gardner's appeal should be considered since his conviction caused his deportation. Gardner, a first offender, was a Jamaican citizen with an American wife and young child. He had been acquitted by a jury of felony drug charges alleging involvement in the street sale of crack cocaine, convicted of the drug possession misdemeanor and spent 60 days in jail before deportation.
She wrote that since Ventura had a separate burglary conviction, however, there was nothing to indicate that winning the car theft appeal would change his deportation or affect his possible return to the United States. A citizen of the Dominican Republic, he had been a permanent legal resident of the U.S. He was stopped by police for a seatbelt violation in a car he told authorities he didn't know was stolen. Convicted by a jury, he spent three years in prison and was paroled to ICE custody.
Attorney Erin Collins, who represents Ventura, said it is a question of fairness where people convicted of relatively low-level crimes are deported before their appeals are heard, while those convicted of more serious offenses are often still in prison and get to appeal.
Attorney Erica Horwitz, her colleague at Appellate Advocates who represents Gardner, said they've had some similar cases over the past 15 years but "not huge numbers." She didn't know how many other cases might be affected by Tuesday's ruling, though she will now challenge Gardner's conviction when the case goes back to the Appellate Division.
"What's astonishing to a lot of people is even a misdemeanor drug conviction that's not marijuana will be a permanent bar for anybody coming back to this country, even if they have no other convictions, even if they are married to an American, even if they have an American child, even if they worked here, even if they were here legally," Horwitz said. "That's why we argued it's very fundamentally unfair not have that conviction be reviewed."
Calls to Queens prosecutors who argued against the appeals were not immediately returned Tuesday.
Carlos Ventura and Damian Gardner were turned over to U.S. Immigration and Customs Enforcement, which sent Ventura back to the Dominican Republic in 2008. Gardner was deported to Jamaica in 2009.
A midlevel court dismissed Ventura's appeal, saying he was unavailable to fight the case. It likewise rejected the appeal of Gardner. Both had claimed there was insufficient evidence to support their convictions in Queens.
The Court of Appeals on Tuesday ordered reviews of both cases on the merits, noting they were unlike those where defendants forfeit their appeal rights by running away.
"Ventura and Gardner had an absolute right to seek appellate review of their convictions," Judge Theodore Jones Jr. wrote. He cited the New York statute that codifies a criminal defendant's common law right to appeal to an intermediate court.
Ventura was convicted of stealing a car, a felony, following his 2005 arrest. Gardner was arrested in 2006 and convicted of misdemeanor drug possession.
The top court, divided 4-3, concluded that the midlevel Appellate Division "abused its discretion" in following precedent and dismissing appeals by absent defendants, here two who had no choice about it.
"Ventura and Gardner 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," Jones wrote. "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."
Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick and Robert Smith agreed. Smith also wrote that in other jurisdictions absent defendants are not considered unavailable or to answer court mandates when they have lawyers present.
In her dissent, Judge Susan Read wrote the majority's new rule was too broad, stripping the midlevel court's discretion under state law to dismiss a pending criminal appeal. Judges Victoria Graffeo and Eugene Pigott Jr. concurred with Read.
Read agreed that Gardner's appeal should be considered since his conviction caused his deportation. Gardner, a first offender, was a Jamaican citizen with an American wife and young child. He had been acquitted by a jury of felony drug charges alleging involvement in the street sale of crack cocaine, convicted of the drug possession misdemeanor and spent 60 days in jail before deportation.
She wrote that since Ventura had a separate burglary conviction, however, there was nothing to indicate that winning the car theft appeal would change his deportation or affect his possible return to the United States. A citizen of the Dominican Republic, he had been a permanent legal resident of the U.S. He was stopped by police for a seatbelt violation in a car he told authorities he didn't know was stolen. Convicted by a jury, he spent three years in prison and was paroled to ICE custody.
Attorney Erin Collins, who represents Ventura, said it is a question of fairness where people convicted of relatively low-level crimes are deported before their appeals are heard, while those convicted of more serious offenses are often still in prison and get to appeal.
Attorney Erica Horwitz, her colleague at Appellate Advocates who represents Gardner, said they've had some similar cases over the past 15 years but "not huge numbers." She didn't know how many other cases might be affected by Tuesday's ruling, though she will now challenge Gardner's conviction when the case goes back to the Appellate Division.
"What's astonishing to a lot of people is even a misdemeanor drug conviction that's not marijuana will be a permanent bar for anybody coming back to this country, even if they have no other convictions, even if they are married to an American, even if they have an American child, even if they worked here, even if they were here legally," Horwitz said. "That's why we argued it's very fundamentally unfair not have that conviction be reviewed."
Calls to Queens prosecutors who argued against the appeals were not immediately returned Tuesday.
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