Opinion
2011-997 K CR
09-29-2014
The PEOPLE of the State of New York, Respondent, v. Marino SERRANO, Appellant.
Steven Banks, The Legal Aid Society, New York City (Amy Donner of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York City (Amy Donner of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Joyce Slevin of counsel), for respondent.
PRESENT: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Felicia A. Mennin, J., at plea; Joanne D. Quinones, J., at sentence), rendered March 7, 2011. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated and driving while ability impaired. Motion by respondent to dismiss the appeal on the ground that defendant has been deported and is unavailable to obey the mandate of the court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is granted, and the appeal is dismissed without prejudice to a motion to reinstate the appeal should defendant return to this court's jurisdiction.
On July 26, 2009, defendant, while driving a van on Surf Avenue in Kings County, sideswiped a parked vehicle. Defendant did not stop. Shortly thereafter, he was apprehended. The accusatory instrument indicated that the arresting officer had observed defendant exhibit signs of intoxication—slurred speech, red and watery eyes, the odor of an alcoholic beverage on his breath, and an unsteady gait. Defendant was charged, among other things, with common law driving while intoxicated (Vehicle and Traffic Law § 1192[3] ) and driving while ability impaired (Vehicle and Traffic Law § 1192[1] ). On March 8, 2010, defendant pleaded guilty to the two charges. During the plea allocution, neither the Criminal Court, defendant, nor his counsel, in any manner or form, discussed the constitutional rights defendant was waiving by pleading guilty, and whether he understood that he was waiving those rights. The court asked defendant whether he wished to plead guilty to the two charges, if he understood that he was pleading guilty because he was guilty of the charges, and whether he was pleading guilty of his “own free will.” Defendant answered those questions in the affirmative. Defendant agreed to enroll in an alcohol rehabilitation program. The court agreed to sentence him to a conditional discharge, a fine, and a license suspension if he successfully completed the program.
Defendant failed to complete the program. On March 7, 2011, defendant was sentenced to a term of 30 days of incarceration, his driver's license was suspended for six months, and a surcharge and fee in the total amount of $395 was imposed. It is undisputed that defendant has served his sentence.
On appeal, defendant contends that his plea was insufficient since the court failed to advise him of his constitutional rights, in accordance with Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that the issue is reviewable on direct appeal pursuant to People v. Tyrell , 22 N.Y.3d 359, 981 N.Y.S.2d 336, 4 N.E.3d 346 (2013). The People contend that defendant failed to preserve the issue for appellate review by moving to withdraw his plea pursuant to CPL 220.60(3), or to vacate the judgment of conviction pursuant to CPL 440.10. The People further contend that Tyrell should not apply in this case because defendant could have moved to withdraw his plea during the one-year interval between his plea and sentence, while the defendant in Tyrell was sentenced during the same proceeding at which his plea was accepted.
In our view, Tyrell is applicable to the facts and circumstances of this case, notwithstanding that defendant was sentenced one year after his plea had been accepted (see People v. Green, 43 Misc.3d 141 [A], 2014 N.Y. Slip Op. 50815[U], 2014 WL 2178884 [App.Term, 9th & 10th Jud.Dists.2014] ; People v. Domin, 42 Misc.3d 149[A], 2014 N.Y. Slip Op. 50403 [U], 2014 WL 1096664 [App.Term, 9th & 10th Jud.Dists.2014] ; see also People v. Perez, 116 A.D.3d 511, 983 N.Y.S.2d 269 [2014] ; People v. Miller, 113 A.D.3d 573, 573–574, 979 N.Y.S.2d 522 [2014] ). “[W]here a deficiency in the plea allocution is so clear from the record that the court's attention should have been instantly drawn to the problem, the defendant does not have to preserve a claim that the plea was involuntary because ‘the salutary purpose of the preservation rule is arguably not jeopardized’ ” (People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], quoting People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). The fact that defendant answered in the affirmative when the court asked him whether he was pleading guilty of his “own free will” was not an indication that defendant was aware of or understood the constitutional rights he was waiving by pleading guilty (see People v. Benjamin, 24 Misc.3d 103, 104, 885 N.Y.S.2d 141 [App.Term, 1st Dept.2009] ).
It is undisputed that defendant has served his sentence and that he was deported to his native country, Mexico, by the United States Department of Homeland Security on April 18, 2013. We recognize that the Court of Appeals has indicated that a defendant who has been involuntarily deported by the United States Department of Homeland Security has a fundamental right, pursuant to CPL 450.10, to an appeal to an intermediate appellate court (see People v. Ventura, 17 N.Y.3d 675, 682, 934 N.Y.S.2d 756, 958 N.E.2d 884 [2011] ), unlike defendants who voluntarily abscond and deliberately evade justice (id. at 680, 934 N.Y.S.2d 756, 958 N.E.2d 884 ). However, we agree with the People that the appeal should be dismissed.
The defendants in Ventura only raised issues regarding the legal sufficiency of their judgments of convictions, and whether the verdicts of guilt were against the weight of the evidence. The Court of Appeals indicated that “disposition of the discrete appellate issues would result in either an affirmance or an outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants” (People v. Ventura, 17 N.Y.3d at 682, 934 N.Y.S.2d 756, 958 N.E.2d 884 ). While some post-Ventura cases have reviewed the merits of appeals by involuntarily deported defendants (see People v. Badia, 106 A.D.3d 514, 964 N.Y.S.2d 906 [2013] ; People v. Jones, 104 A.D.3d 957, 960 N.Y.S.2d 910 [2013] ), we find that, in this case, reversal would be required and, notwithstanding the fact that defendant has served his sentence, a penological purpose would be served by remitting the matter to the Criminal Court for all further proceedings (see People v. Allen, 39 N.Y.2d 916, 386 N.Y.S.2d 404, 352 N.E.2d 591 [1976] ). The crime with which defendant was charged is not a minor offense, but a serious one, which could potentially serve as a predicate for an enhanced charge (see Vehicle and Traffic Law § 1193[1][c] ). Thus, defendant's continued legal participation would be necessary, which is not possible because he has been deported. Under these circumstances, the appeal must be dismissed (see People v.
Harrison, 115 A.D.3d 980, 982 N.Y.S.2d 544 [2014] ; People v. Bonilla, 41 Misc.3d 894, 972 N.Y.S.2d 492 [Sup.Ct., Queens County 2013] ).
Accordingly, the motion is granted, and the appeal is dismissed without prejudice to a motion to reinstate the appeal should defendant return to this court's jurisdiction.