In People v. Ventura, 17 NY3d 675, 958 NE2d 884, 934 NYS2d 756 , the Court of Appeals declared that while it is within its purview as a court of permissive appellate jurisdiction to dismiss an appeal on such grounds, "as a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appellate [review]" (17 NY3d at 682).
It found that the policy concern that "courts should not aid in the deliberate evasion of justice through continued consideration of appeals" is not present where a defendant has been involuntarily deported (id. at 679-680).
The court noted that such a defendant "lacks the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings" (id. at 680).
Indeed, it opined that such a defendant has "a greater need to avail himself of the appellate process in light of the tremendous ramifications of deportation" (id.).
Furthermore, the court determined that "the perceived inability to obey the mandate of the court" is not involved in an intermediate appeal since "disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the conviction " (id. at 682).
Accordingly, it reversed and remitted to the Appellate Division for review on the merits two appeals which had been dismissed because the defendants were involuntarily deported (id.)