People v Reid
Annotate this CaseDecided on March 6, 2012
Criminal Court of the City of New York, Queens County
The People of the State of New York
against
Keith Reid, Defendant
97Q014352
Keith Reid, Defendant, pro se.
Richard A. Brown, Queens County District Attorney, Danielle Fenn, Esq. Of Counsel.
Suzanne Melendez, J.
The defendant was admitted into the United States as a legal permanent resident in 1986 at the age of twelve. According to his E-Justice criminal history from the New York State Division of Criminal Justice Service, the defendant has two felony convictions, four misdemeanor convictions and one violation. His first arrest was four years after his entry into the country on March 27, 1991 for the crimes of criminal mischief and criminal trespass. On April 11, 1991, he pled guilty to trespass, a violation, in full satisfaction of the docket. On September 26, 1991, he was arrested and charged with criminal mischief in the third degree and criminal possession of marihuana in the fifth degree. He pled guilty to criminal possession of marihuana in the fifth degree on January 27, 1992. On January 1, 1993, the defendant was arrested and charged with criminal possession of a loaded firearm in the third degree. He was convicted of this charge after a bench trial on May 19, 1993 and sentenced to a term of one to three years. He was released to parole on April 20, 1994. According to the defendant's affirmation, he was detained at JFK airport in 1995 after a brief trip abroad because he was told that he "did not appear to be admissible" as a result of his prior convictions. Eventually, he was allowed to enter the country. On April 16, 1997 he pled guilty to attempted criminal sale of marijuana in the fourth degree under docket 97Q014352. On December 3, 1997, he pled guilty to criminal sale of marijuana in the fourth degree under docket 97Q054937. These two charges [*2]are the subject of the defendant's motion to vacate.
On May 24, 1998, he was arrested and charged with assault in the first degree and criminal possession of a weapon in the fourth degree. On August 16, 1999, he was convicted of the charges after a jury trial and sentenced to a term of fifteen years. This conviction was affirmed by the Appellate Division Second Department on December 16, 2002.
In 1999 the Department of Homeland Security served the defendant with a Notice to Appear alleging that he was removable from the United States because of the two misdemeanor convictions at issue in this motion to vacate. The defendant was ordered removed in March of 2001 because of the convictions under the instant dockets. After numerous motions to the Board of Immigration Appeals, the defendant's case was reopened. On June 28, 2011, before Immigration Judge John B. Reid, the Immigration Court found that the "the respondent may have appeared to be eligible for cancellation of removal" because his convictions of the drug offenses would not be considered to be aggravated felonies. However the court determined that his conviction of the aggravated felony on August 16, 1999 "blocks the respondent from that relief " because the defendant did not meet his burden of establishing that he was not convicted of any aggravated felony. Based on this finding, the defendant was again ordered removed.
DEFENDANT'S CHARGES IN THE REMOVAL PROCEEDINGS
According to the U. S. Department of Justice, Immigration Court, the basis for defendant's removal in the Immigration Court is that he is an alien who has been convicted of one or more crimes involving moral turpitude who has been convicted of one or more drug offenses who an Immigration Officer would have good reason to believe at one point was involved in drug trafficking. Thus, the basis for the defendant's removal is because of the two charges now before this court. Although the defendant has a significant record which would likely also result in removal, those charges are not the ones for which he is being removed.
DEFENDANT'S 440 MOTION
After extensive motion practice, despite the apparent weakness of the defendant's claims, this court granted a hearing to make findings of fact essential to determine the merits of the defendant's claims that he had viable defenses to the charges on the two dockets and that he would not have pleaded guilty if he had been informed of the immigration consequences of his pleas. The court granted the hearing primarily because of the recent Appellate Term ruling in People v Jaikaran (33 Misc 3d 137[A] [2d Dept, 11th and 13 Jud Dists [2011]) which held that a hearing must be granted whenever issues of fact exist no matter how weak the defendant's documentary proof may be supporting a contested fact. The court stated, "since the allegations in the [defendant's] motion papers were neither conceded by the People to be true nor conclusively substantiated by unquestionable documentary proof' (CPL 440.30 [3] [c]) in order for the Criminal Court to make the required findings of fact essential to the determination' of the motion (CPL 440.30 [5]) a hearing is necessary." Thus in Jaikaran a hearing was required even though the court record in the underlying case contradicted the defendant's allegations in support [*3]of his motion to vacate.
As a result, this court in the instant action ordered a hearing on the defendant's motion to be held on December 12, 2011. In a letter dated November 23, 2011, however, the defendant informed the court that he had been deported to Jamaica. It turns out that the defendant was actually deported on August 25, 2011. Defendant made no mention of this in his October 3, 2011 reply response to the People affirmation in opposition to vacate judgement. To the contrary, the defendant's response [FN1] gave the false impression that he was still in the New York area.
The issue presented now is whether the defendant's motion should be dismissed without prejudice because, as a result of his deportation to Jamaica, the defendant is no longer available to obey the mandate of the court. In general the Court of Appeals has consistently dismissed cases where a defendant is outside the control of the court. "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]. Relying on this principle, the Court in People v Diaz (7 NY3d 831 [2006]) concluded that an involuntarily deported defendant's appeal should be dismissed without prejudice to be reinstated should he return to the Court's jurisdiction. Recently in People v Ventura, People v Gardner (17 NY3d 675 [2011] ) the Court of Appeals refined it's rule as it applies to the rights of deported defendants to have their appeals considered. The Court held that the intermediary appellate courts erred when they dismissed appeals by defendants who were deported. The Court reasoned that Criminal Procedure Law 450.10 [FN2] gives defendants an absolute right to seek some level of appellate review of their convictions. The Court further noted that the discrete appellate issues involved in Ventura and Gardner would result in either an affirmance or outright dismissal of the conviction. Thus continued legal participation of the defendant would not be implicated since neither outcome would involve the defendant's ability to obey a mandate of the court.
In contrast with a defendant's absolute right to appellate review, a defendant does not have a fundamental right to have a final determination on a motion to vacate. Moreover, the outcome of a motion to vacate, should it be granted, involves the defendant's ability to obey the mandate of the reviewing court. For example, should the motion be granted, the defendant's cases would be restored to their pre-pleading status (CPL 440.10 [8]). The court would have no authority to have the defendant returned to the United States for the required arraignment, bail hearing, suppression hearings and trials. Moreover it is unlikely that the defendant would be able to apply for readmission to the United States given the two drug convictions which are the subject of the instant motion to vacate and his other felony convictions. As the People affirm in their supplemental response to defendant's motion to vacate judgement, "according to Assistant Chief Counsel Carol Bridge, defendant, although able to apply to the Attorney General for consent to apply for readmission, is very unlikely to obtain consent because he was convicted of a violent crime — Assault in the First Degree — and has a history of drug-related arrests." [*4]
The defendant claims in his response [FN3] dated January 29, 2012 that if his motion to vacate is granted he would be able to request permission from the Department of Homeland Security for a visiting visa and stands likely to return to the United States. This claim is unbelievable. Homeland Security is unlikely to overlook the defendant's conviction of assault in the first degree and his extensive criminal history.
Accordingly, the defendant's motion to vacate is dismissed without prejudice. The motion will be reinstated should the defendant return to this court's jurisdiction.
The defendant is advised of his right to apply to the Appellate Term, Supreme Court, Second Judicial Department ,141 Livingston Street,15 Floor, Brooklyn 11201, for a certificate granting leave to appeal this denial of defendant's CPL 440.10. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).
This constitutes the decision and order of the Court.
Dated: March 6, 2012
______________________________
Kew Gardens, New YorkSUZANNE MELENDEZ, JCC
Footnotes
Footnote 1:Although referred to by the defendant as an affirmation, the response was not properly sworn to by the defendant.
Footnote 2:CPL 450.10 codifies the right of a defendant to appeal to intermediate appellate courts.
Footnote 3:Although the defendant also refers to this response as an affidavit, it is not since it is not sworn to properly.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
