Do you need a post-conviction attorney to reopen an old criminal case or to challenge your case on appeal?
Do you want to undo a plea of guilty or reduce a sentence from the past that is causing an immigration problem?
Labe Richman has been named a “Super Lawyer” by Thomson-West and is rated “Preeminent” by Martindale-Hubbell®. He has a “Superb” rating on Avvo.com. He is a former adjunct professor of law, who has published articles and lectured widely at law schools and bar associations on post-conviction work.
NOTE: THE NEW MARIJUANA VACATUR LAW IS IN ANOTHER SECTION OF THE WEBSITE. THIS LAW GIVES IMMIGRANT DEFENDANTS ADDITIONAL RIGHTS TO VACATE CONVICTIONS EVEN IF THEY HAVE BEEN EXPUNGED. IMMIGRATION AUTHORITIES DO NOT HONOR EXPUNGEMENTS. A MOTION TO VACATE MUST BE MADE TO AVOID IMMIGRATION CONSEQUENCES FOR A NOW EXPUNGED MARIJUANA CONVICTION. THIS APPLIES TO ALL MARIJUANA CONVICTIONS AND ONE FELONY CONVICTION, PENAL LAW SECTION 221.20.
In addition to my trial practice, I have a great deal of experience challenging convictions and sentences on appeal or by motion to vacate. In particular, as a result of our country’s strict immigration laws and aggressive enforcement by DHS (Department of Homeland Security), many immigrants have hired me to attack convictions or to reduce sentences that are now causing their deportation or other immigration problems. Fortunately, under the right circumstances, challenges to New York State convictions and sentences under Criminal Procedure Law Section 440 can be made at any time, no matter how long ago the convictions occurred. I am very happy to say that in the time that we have been doing this type of work, we have been able to obtain relief in criminal courts for over 60 clients who would have been deported otherwise or would have lost the chance at certain immigration benefits such as green cards or citizenship.
In 2010 the U.S. Supreme Court, in Padilla v. Kentucky, ruled that the right to counsel under the federal constitution includes the right to an attorney who knows about immigration consequences and advises the defendant about those consequences. This is a huge step forward for immigrant defendants, and this will give constitutional claims to many defendants who pleaded guilty without understanding the dire immigration consequences for them and their families. The chance to reopen an old conviction that is decimating a defendant’s life in the United States is an important legal right now acknowledged by the Supreme Court.
[NOTE: This right has been curtailed by the Supreme Court in its recent decision in Chaidez v. U.S. for those whose convictions became final before the decision date in March of 2010. We were working on a case to circumvent that decision in People v. Baret, but we lost on June 30, 2014, in the New York State Court of Appeals. It was a sad day for New York. As Chief Judge Lippman said in the dissent, this case was about “humanity and justice” not “sterile legal doctrine.” This is a huge setback for clients seeking to vacate their conviction because of a failure to inform them of the immigration consequences. However, as the below discussion shows, we have vacated convictions for many other reasons and will continue to fight for immigrants unfairly convicted of certain crimes leading to deportation, and bars to green cards and citizenship]
These challenges to convictions in New York State involve motions to vacate convictions under Section 440 of the Criminal Procedure Law. (CPL § 440.10, especially CPL § 440,10(1)(h). This is commonly called a 440 motion.
Although I am often unable to mount a successful challenge to a conviction, I have established a strong record of success in this area, and I have reopened many cases. The following are examples of what I have done in the past. However, these examples do not guarantee that I will be successful in your case. The chances of success depend upon the facts of each case and the application of the law to those facts.
Since Padilla was issued, we have had a great deal of success in this area. I do not update the website with our successes every year, but as of 2019 we have helped 100 immigrants obtain assistance with their old criminal cases so that they can avoid deportation or obtain immigration benefits they could not get before, like citizenship or a green card. In the past we have described some of these case which are listed here:
In 2011 and in 2012, we have vacated a deportable assault conviction in Nassau County and were able to negotiate a plea of guilty to non-deportable offense. We vacated a gun conviction in Kings County and were able to get the charges dismissed. In Queens County, our federal court litigation led to a settlement of the case, which involved a vacatur of a conviction for possession with intent to sell, and we were able to negotiate a plea of guilty to a controlled-substance offense that would allow the defendant to receive a waiver and be eligible for citizenship. We had a similar result in New York County, where a sale charge was vacated and a new plea entered to possession of a particular weight. We also won an appeal of a Padilla motion in the Appellate Term and we earned the defendant the right to an evidentiary hearing on the motion. We are still waiting for the result on that case.
In federal court, after a conviction and sentence was completed, we filed a coram nobis writ and vacated the conviction for embezzlement and fraud that would have caused mandatory deportation and a lifetime bar to citizenship. We were able to vacate the convictions and then negotiate a new plea agreement that would not have such horrible immigration consequences.
There are many other cases. A Long Island man was convicted of second-degree sex abuse in 1996, was held in mandatory immigration custody and was ordered deported. I filed a 440.10 motion to vacate and won reversal of the conviction in Suffolk County Criminal Court. In addition to reopening this old conviction, I also won dismissal of the charges in the interest of justice.
In addition to the cases mentioned above, I have vacated at least twenty drug convictions in New York State by 440.10. These successful motions to reopen cases were made in the counties of New York (Manhattan), Queens, Kings (Brooklyn), Richmond (Staten Island), Champlain, Jefferson and Nassau. In some cases, I subsequently won dismissal of the charges. One of these convictions involved a serious felony charge. In some cases, I negotiated a plea of guilty to a charge of disorderly conduct, which did not affect the clients’ immigration status. In some cases, the clients were able to plead to felony-possession counts, which allowed them to still apply for cancellation of removal, a remedy used to avoid deportation. In others we pleaded the defendants to non-deportable offenses like illegal knives that were also found on the defendant’s person.
In a federal bank-fraud case, I convinced federal prosecutors and INS officials to dismiss deportation proceedings because of problems with the federal conviction.
I vacated a loitering-for-the-purposes-of-prostitution conviction by 440.10 and was able to negotiate a conditional dismissal of all charges, which will have no immigration consequences for the immigrant. Similarly, in a pro bono case I did for a law-school legal clinic in Boston, I obtained a withdrawal of a plea of guilty to prostitution charges and the granting of an adjournment in contemplation of dismissal, which had no immigration consequences.
Ten years after a defendant served one and a half to three years for burglary, by 440.10 I won the defendant a resentencing where his conviction was substituted with a youthful offender adjudication and his sentence was reduced to 364 days.
A citizen from Guyana pleaded guilty to grand larceny, without a promise of a particular sentence as a result of his plea. Ultimately, he received a sentence of one to three years in jail, which is an aggravated felony under immigration law that leads to deportation with no remedy. Through litigation, I was able to file a late notice of appeal, which temporarily terminated deportation proceedings releasing the deportee from immigration jail. I then filed a motion to vacate the conviction and sentence. After losing that motion, I obtained permission to appeal that loss, and we consolidated the appeal of the motion with the direct appeal I had already filed. Then, I won the appeal, and the court entirely reversed the conviction and sentence. I was then able to negotiate a plea of guilty to a charge and sentence, which will not lead to automatic deportation.
Many defendants have hired me to try to change their sentences so that the charge would not be considered an aggravated felony under immigration law. As many immigration clients learn, many crimes with sentences of a year or more are aggravated felonies, which, as noted above, involves deportation with no remedy. In other words, deportees, though they have committed a deportable crime, could still ask a judge to waive deportation if only the sentence could be reduced to less than a year. In a recent case, I challenged a particular sentence in the state trial court, in the state appellate court, and then in federal court. Once the case entered federal court, the DA’s office agreed to a reopening of the sentencing and a reduction of the sentence. This avoided mandatory deportation. These reductions can be done under 440.10 and under 440.20 of the Criminal Procedure Law.
In another attempt to reduce a sentence, I won a writ of habeas corpus before the Honorable Kimba Wood in federal district court in Manhattan under 28 United States Code, Section 2255. This successful motion vacated an aggravated-felony sentence in a federal forged-documents conspiracy case. I then convinced the district court to re-sentence the defendant to 364 days, which avoided the stripping of an asylum grant by DHS. (As noted above, convictions with sentences of less than one year in such cases are not aggravated felonies, allowing for revocation of asylum). Additionally, I won another 2255 application before the Hon. Sterling Johnson, Jr. in U.S. District Court in the Eastern District of New York and won a resentencing on an illegal-reentry case. This saved the defendant nine months in jail.
I won a motion to vacate a fraud conviction in Kings County Supreme Court on the grounds that the Court had given the defendant mis-information about the immigration consequences of the plea. I was then able to renegotiate a plea to three charges where each count had a loss amount less than $10,000. Therefore, the crimes were not considered aggravated felonies (An aggravated felony in fraud cases exists when the amount of the monetary loss is more than $10,000).
I won a prosecutor’s appeal of a successful vacatur of a narcotics conviction in Queens. The Appellate Term ruled that the inaccurate immigration advice given to this defendant justified the court in vacating his guilty plea.
In the Bronx, we recently vacated by 440.10 a one-year sentence for forgery from 10 years ago and had it reduced to 9 months so that the defendant would not be guilty of an aggravated felony under immigration law.
Several of the above cases were won because of the new case of Padilla v. Kentucky. However, I had a substantial amount of wins in this area prior to the Supreme Court’s decision in March of 2010.
Several times, I have helped clients obtain termination of immigration proceedings and release from mandatory detention because I have won motions to file a late notice of appeal. In New York this is done by Section 460.30(1) of the Criminal Procedure Law and we have had many successes under this statute. I have done this in federal court also. I won a reversal of the sentence and sought a re-sentence to 364 days in jail so that the crime would not be considered an aggravated felony under immigration law. Unfortunately, after this victory in the appellate court, the district court refused to reduce the sentence. As you can see, I have obtained significant results for my clients. However, as I said before, each client needs to understand that past results do not control or predict the result in your particular case.
As a result of my expertise in this area, I have been invited to give lectures on the subject at seminars on immigration law given by the New York State Bar Association, the Association of the Bar of the City of New York, The Association of Immigration Lawyers (“AILA”), the New York State Defenders Association – Immigration Defense Project, and the Public Law Institute. I also gave lectures on post-conviction proceedings for immigrants to the Immigration Justice Clinic at Cardozo Law School and the Prisoner’s Rights Seminar at Columbia University Law School. I gave moderated the seminar on Padilla v. Kentucky at the 2010 National AILA Conference. I have published three articles on this subject which have appeared in the New York State Association of Criminal Defense Lawyers’ magazine, Atticus the New York Law Journal, and, one article was delivered at the December 2009 conference of the American Immigration Lawyers Association. One of the articles is reproduced below and in the section titled “Published Articles” which was also cited in a judicial opinion in the case of People v. Hidalgo.
My appellate/post-conviction career is full of other success stories. Each of these cases represents an individual who was given a new life. 20 and five-sixths to 50 year sentence for robbery and related crimes, reversed, 638 N.Y.S.2d 79 (1st Dept. 1996); 12½ to 25 year sentence for possession of a controlled substance with intent to sell, reversed, 202 A.D.2d 225 (1st Dept. 1994); Defendant failed a special employment program and was given an upstate sentence on his burglary conviction, case was modified and remanded to give defendant the opportunity to withdraw his plea. 202 A.D.2d 698 (2d Dept. 1994); 5 to 10 year sentence for criminal sale of a controlled substance reversed, 165 A.D.2d 725 (1st Dept. 1990); 25 to life sentence for robbery and assault as a mandatory persistent violent offender reversed, 172 A.D.2d 183 (1st Dept. 1991); 4½ to 9 sentence for sale of a controlled substance reversed by Appellate Division as a result of his §440.10 motion on ineffective assistance of counsel; 12½ to 25 year sentence reversed as a result of his §440.10 motion; 20 to 40 year sentence for robbery and burglary reversed, 147 A.D.2d 427 (1st Dept. 1989); 3½ to 7 year sentence for possession of stolen property reversed, 141 A.D.2d 427 (1st Dept. 1988).
When defendants were harassed by private-citizen criminal complaints at 386 Broadway, I had the entire process ruled unconstitutional. 151 Misc.2d 530 (New York Cty. 1991). Moreover, the New York Civil Liberties Union, the American Jewish Congress and the Lamda Legal Defense Fund asked me to write a friend of the court brief on double jeopardy law to the U.S. Court of Appeals for the Second Circuit and we won, 162 F.3d 732 (2d Cir. 1998).
I have been an Adjunct Professor of Law at New York Law School teaching trial advocacy. I was a member of the Cardozo Law Review, I graduated with honors and was a faculty member of the Cardozo Law School Criminal Appeals Clinic. I am a published author in the area of criminal law [See, for example, “Interrogation and Confessions,” Chapter 3, Criminal Defense Techniques; “Opening Within the Rules,” The New York Law Journal, July 17, 2003; “May Jurors Ask Witnesses Questions?” The New York Law Journal, September 25, 2003 (click on “Published Articles” above for the full text of some of these articles)]. I am also a graduate of the National Criminal Defense College and have lectured at Rutgers Law School, Seton Hall Law School, Cardozo Law School, the National Institute for Trial Advocacy, the Office of the Capital Defender, the New York County Lawyers’ Association, The Association of the Bar of the City of New York and the New York State Association of Criminal Defense Attorneys. I have been rated by Martindale and “Pre-eminent” and I have been named a SuprerLawyer by Thompson West.
We have experience with the following post-conviction procedures:
Appeals of federal convictions in the Second Circuit U.S. Court of Appeals
Cert Petitions to the U.S. Supreme Court
Motions to vacate federal convictions under 28 USC Section 2255
Writs of error coram nobis on old federal convictions
Appeals of New York State Convictions in all of the Appellate Divisions and Appellate Terms, which includes, the Appellate Division, First Department in Manhattan, the Appellate Division Second Department in Brooklyn, the Appellate Division, Third Department in Albany, the Appellate Division, Fourth Department in Rochester, the Appellate Term, First Department in Manhattan, the Appellate Term, Second Department, in White Plains and Brooklyn
Writs of error coram nobis to file super-late notices of appeal or to redo incompetently handled appeals
Appeals to the highest court in New York State, the New York Court of Appeals
Motions to vacate convictions pursuant to New York Criminal Procedure Law Section 440.10
Motions to vacate sentences pursuant to New York Criminal Procedure Law Section 440.20
Motions to challenge state convictions by habeas corpus proceedings in federal court
pursuant to 28 USC Section 2254
Motions to file a late notice of appeal pursuant to Criminal Procedure Law Section 460.30(1).
Administrative Appeals of parole determinations and state court Article 78 proceedings to bring the propriety of parole determinations to New York State Courts
In addition to my post-conviction work, I am an experienced trial attorney who can defend clients in court who have not yet been convicted. Moreover, since I deal with a lot of immigration cases, I am able to make sure that the clients are fully advised of the immigration consequences of their criminal cases. Also, I use my knowledge of immigration law to craft and negotiate plea agreements which have the least negative effect for the defendant’s immigration status. For more information about my accomplishments in this area, see, “Firm Profile” above. Of course, please contact us if you have further questions.
FREQUENTLY ASKED QUESTIONS ABOUT OVERTURNING PRIOR CONVICTIONS
Is there a time limit for trying to overturn a conviction? The short answer in New York State cases is: No. Section 440.10 of the NY Criminal Procedure Law gives defendants the right to file a motion to vacate a conviction at any time on the grounds that the defendant’s constitutional rights were violated. However, not every issue can be raised by a 440 motion. If someone wants to raise an issue which is clearly in the record, one must justify why that issue was not raised on appeal. (Defendants in New York State have 30 days to file a notice of appeal from the date of sentence. A notice of appeal is a one page document simply stating that one is appealing the judgment. It does not include any briefs, transcripts, appendices, or arguments. Those are filed at a later time pursuant to a schedule dictated by court rules. If no notice of appeal is filed within 30 days, a defendant may file a motion to file a late notice of appeal within one year of the 30 day limit’s expiration). There are many reasons which can justify a failure to appeal which must be explored with your criminal attorney.
In federal cases there is a more complicated answer. There is a time limit of one year from the date that a conviction becomes final to file a motion to vacate the conviction. However, that date can be extended if the defendant could not by due diligence have been aware of the ground for the motion. In such cases, the year would begin from the time that the defendant became aware of the violation. There are also some cases where motions were entertained outside of the year limit but that occurrence is rare. Therefore, it is harder to vacate older federal convictions because there is a time limit contained in the motion to vacate statute, 28 U.S.C. §2255.
Can there be any risk to me if try to overturn a conviction? Yes, there are risks. If you pleaded guilty, vacating the conviction reopens your case. If the prosecutor can prove your case, he can take you to trial and ask the court to sentence you to jail. To determine whether the risk is real, only hypothetical, or non-existent, the defendant must meet with a good criminal attorney to analyze the risk in opening a conviction obtained through a plea. Generally, if you are trying to overturn a conviction based on a trial, the sentence cannot be increased the second time around unless there is some new circumstance which warrants the increase in sentence, such as new misconduct by the defendant.
What is a pardon and can it affect my immigration status? A pardon from the governor can help one avoid deportation for a criminal offense unless it is a controlled substance offense. If one is convicted of sale of drugs, a pardon may help with the trafficking part of the charge but not the controlled substance part. However, in New York, the state does not recognize that distinction and do not consider pardons of drug sale cases for immigration reasons. A person can obtain a waiver of deportation if they receive a pardon from the governor for a non-controlled substance offense.
Pardons do not work at all when it comes to trying to avoid a conviction for a crime which is keeping someone out of the country or are barring an individual from a green card. Pardons do not help in these situations.
If someone has a federal conviction, they must seek a pardon from POTUS. If they have a state conviction, they must seek a pardon from their governor. Sometimes the governor will delegate the responsibility of screening these applications to the parole board.
What is the difference between Clemency and a Pardon? A pardon ends the conviction. Clemency either ends the sentence or it can allow the inmate to see the parole board ealier than their sentence would normally allow.
Investigations of a Criminal Case With an Eye Toward Post-Conviction Relief
Before a motion is made, our firm must first determine whether there is any reason that a motion to vacate a plea can be filed. Our standard investigation regarding a plea of guilty costs around $1900 to 3500 dollars, depending on the location and type of court where the conviction occurred. After the investigation, the client and lawyer will determine whether the issues uncovered warrant the expenditure of additional funds on litigation aimed at undoing the conviction. We will also consider the risks of undoing the conviction. Investigations concerning trial convictions are much more expensive and the cost is dependent on the length of the court record and complexity of the case. Unfortunately, at the end of many investigations, it is determined that there is no basis to overturn the conviction and we take no further action with respect to your case. Clients who hire us to do investigations must realize that it is hard to overturn a conviction and often we will not be able to help them once the investigation is complete. We only file motions on cases that we believe have a reasonable chance of success. The cost of filing a motion to vacate is aroudn 6,500 dollars or more depending on the complexity. Evidentiary hearings in court may cost more.
A single consultation with Mr. Richman costs $200 dollars and this payment will be credited to any future fees if the case is accepted by our office. When the client has a large amount of documents for review, the consultation fee may be larger.
This article which appeared in the New York Law Journal on June 14, 2006, is printed here their permission. This article was also printed in Atticus, the journal of the New York State Association of Criminal Defense Attorneys. This article was cited by the Hon. Roger Hayes in his decision in People v. Hidalgo.
CAN A DEPORTED DEFENDANT CHALLENGE HIS CONVICTION FROM OUTSIDE THE UNITED STATES?
By Labe M. Richman
As a result of extensive plea bargaining, there were over 168, 000 convictions last year in New York City alone, a mind-boggling number. Of course, the millions of convictions attained in New York over the past decades have led to numerous deportations. Obviously, once deported, many of these individuals are motivated to investigate the propriety of their conviction in an effort to re-enter the United States. It is the purpose of this article to examine whether an individual may challenge the legality of his conviction after being expelled from the country. Despite the practical difficulties of litigating from outside the jurisdiction, there is no absolute bar to the filing of a constitutional challenge by appeal or by way of Criminal Procedure Law § 440.10.
Most criminal appeals lawyers assume the opposite. This is because there are numerous summary Appellate Division decisions where appeals were dismissed because the defendant-appellant was deported. [See, People v. Wright, 274 A.D.2d 599 (2nd Dept. 2000); People v. Shaw, 237 A.D.2d 995 (4th Dept. 1997); People v. Malbranche, 268 A.D.2d 488 (2nd Dept. 2000); People v. Forde, 182 A.D.2d 830 (2nd Dept. 1992); People v. Hernandez, 157 A.D.2d 854 (2nd Dept. 1990); People v. Ragsdale, 144 A.D.2d 708 (2nd Dept. 1988); People v. Adamson, 122 A.D.2d 147 (2nd Dept. 1986); People v. Jiminez, 97 A.D.2d 799 (2d Dept. 1983)]. In some cases, CPL § 440.10 challenges were also summarily dismissed for the same reason. [People v. Byfield, 7 Misc.3d 126(A)(N.Y. Sup., App. Term 2005). The briefs on appeal reflect that the defense did not contest the mootness of the appeal. Therefore, in Byfield, the issue raised in this article was not addressed in an adversarial process and the decision contains no facts or analysis]. However, none of these decisions contain a discussion of the legal rationale for the dismissal nor do they contain a description of the facts surrounding the deportations or the convictions. Therefore, the opinions are of little precedential value.
Furthermore, and probably more important, all of the above summary decisions cite People v. Del Rio, [People v. Molina Del Rio, 14 N.Y.2d 165 (1964)], to support the dismissal of the appeal of a defendant who has been deported. Del Rio is a very interesting case that deserves extended discussion. Not only does it not bar a challenge by a deported individual, it actually contains language that supports a defendant¿s right to challenge a conviction when he has been involuntarily removed from the jurisdiction, as in a deportation.
In 1961, Del Rio, a Cuban national, was convicted of murder after trial and sentenced to 20 years to life. As part of a prisoner exchange with the Cuban government, the governor commuted Del Rio¿s sentence and allowed him to be paroled, provided that he agreed to never return to the United States. After Del Rio accepted this commutation and left the United States, the prosecution sought to dismiss his appeal. The Court granted the motion, but, in reaching that decision, it spent the better part of the opinion determining whether Del Rio¿s departure from the United States was voluntary. Indeed, it noted the compelling fact that when the assistant attorney general presented the governor¿s agreement for commutation of his sentence, Del Rio immediately signed it without waiting for the guard to remove his handcuffs. The legal importance of the voluntariness of Del Rio¿s removal from the United States was made even more clear when the Court noted in the procedural history of the case that it had dismissed the appeal on an earlier occasion and had vacated that order when it was alleged that his removal was not voluntary. This implies that an involuntary removal from New York, such as during a deportation, could not strip jurisdiction from the Court.
In reaching its decision, the Del Rio court relied on the fugitive disentitlement doctrine which holds that a convict who has escaped or absconded cannot avail himself of the court¿s jurisdiction. [The Del Rio Court relied on People v. Genet, 59 N.Y. 80 (1874); For a discussion of the fugitive dis-entitlement doctrine see, Ortega-Rodriguez v. United States, 507 U.S. 234 (1993); Peppin v. Lewis, 194 Misc.2d 151 (Family Court, Albany 2002)]. Such a rule is good public policy because it discourages flight while an appeal is pending. It would be a dishonor to the Court to allow a defendant to flee and still appeal his sentence and conviction when he would not have to fulfill his sentence or be retried once the appeal was decided. Such action, of course, flouts the authority of the court. However, it is indisputable that the application of this doctrine also requires a voluntary absence by the defendant. As the Eleventh Circuit stated in United States v. Ortega-Rodriguez, 13 F.3d 1474, 1476 (11th Cir. 1994), a fugitive defendant forfeits his right to contest the conviction on appeal unless his absence from the jurisdiction “was due to matters beyond his control.” Id. at 1476. This exception to the doctrine applies to deportees because they are normally expelled from the country against their will which is, by definition, beyond their control.See, People v. Clancy, 39 A.D.2d 538 (1st Dept. 1972).
Even though the fugitive disentitlement doctrine and Del Rio are clearly distinguishable from involuntary deportations, as noted above, there are still numerous summary appellate division opinions which dismissed appeals because the defendant was deported. These decisions must be addressed and, in reality, they can be reconciled with the above analysis. First, it may be that the substance of these appeals were meritless, that counsel lost touch with the defendant after his deportation, [See, People v. Shaw, 237 A.D.2d 995 (4th Dept. 1997)(defendant deported and whereabouts unknown)], and that the motion to dismiss the appeal was, thus, unopposed by defense counsel. This explains the summary nature of the order. Second, it may also be that the deportations occurred for immigration violations unrelated to the convictions on appeal. Therefore, in that situation, even if the challenged conviction was reversed on appeal, the defendant might never be able to return for trial because he is inadmissible to the United States for other reasons. This circumstance would bring the case within the ambit of Del Rio, where the defendant agreed to never return to the United States. It would not make sense to review a conviction when the defendant is forever banned from the United States for entirely independent reasons. In such a situation, the Court would have to expend great effort to decide the case, and then if the conviction was vacated, it would never be able to try the defendant on the indictment. This would be another reason that a defendant might not oppose a motion to dismiss an appeal ¿ that is, reversal would have no effect on his right to re-enter the United States and the conviction might not affect his life in his home country.
However, the situation is much different when the conviction which the defendant seeks to challenge actually caused his deportation and keeps him from re-entering the United States. This was exactly the reasoning of the Washington State Supreme Court when it ruled that a defendant may challenge his conviction on appeal when he is outside the United States. [State v. Ortiz, 774 P.2d 1229 (Wash. 1989)(en banc); See, United States v. Campos-Serrano, 404 U.S. 293, 294 n. 2 (1971); United States v. Marsh, 747 F.2d 7, 9, n. 2 (1st Cir. 1984); Cuellar v. State, 13 S.W.2d 449, 451 (Tex. App. Corpus Christi, 2000)]. In such cases, the appeal (and for that matter a collateral challenge), would not be moot at all but would impact on the defendant¿s right to re-enter the United States, a critical issue for any prior resident.
To guarantee fairness, New York law should be interpreted similarly. A defendant whose rights are violated and is then deported against his will should not be denied redress in our courts simply because he is not situated in the country. New York State should not be able to win post-conviction litigation simply because the federal government expelled the defendant against his will before he could vindicate his constitutional and statutory rights. [It should be noted, however, that DHS cannot deport individuals on convictions which are still on appeal. Matter of Thomas, 21 I&N Dec. 20 (BIA 1995) citing Pino v. Landon, 349 U.S. 901 (1955); Matter of Ozkok, 19 I&N 546, 552 n. 7 (BIA 1988); 8 U.S.C. §§ 1101 (f)(3), (7) & (8). The situation discussed in this article will arise more often for defendants who failed to appeal in the first instance but whose rights were otherwise violated, see, People v. Corso, 40 N.Y.2d 578 (1976), or for defendants who fail to tell DHS that their convictions are still on appeal].
[NOTE: The recent trend has been in favor of allowing challenges from people who have been deported. There are new cases which are not listed in this article that are helpful to deported immigrants attacking convictions].