People v. Diaz

OPINION OF THE COURT Memorandum. The appeal should be dismissed without prejudice. As stated in People v Genet (59 NY 80, 81 [1874]), “[t]he whole theory of [832] criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person.” Thus, this Court has consistently dismissed appeals where a defendant has absconded (see People v Smith, 44 NY2d 613 [1978]; People v Parmaklidis, 38 NY2d 1005 [1976]). Moreover, in People v Del Rio (14 NY2d 165 [1964]), we dismissed defendant’s appeal when he voluntarily absented himself from this Court’s jurisdiction by consenting to deportation. Although defendant here has been involuntarily deported, he is nevertheless unavailable to obey the mandate of this Court. While this absence does not mandate dismissed of the appeal, it presents a situation analogous to that of mootness (see Smith, 44 NY2d at 617). Analyzing the relevant factors, we determine that it would be inappropriate under the circumstances of this case to retain this appeal. In exercising our discretion, we dismiss this appeal without prejudice to defendant’s making a motion to reinstate the appeal should he return to this Court’s jurisdiction (cf. People v Sullivan, 28 NY2d 900, 901 [1971] [appeal dismissed where appellant was “not presently available to obey the mandate of the court in the event of an affirmance”]; People v Sullivan, 28 NY2d 992 [1971] [dismissed appeal reinstated upon defendant’s return to custody]).