People v. Reyes

Appeal from judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered April 11, 1997, convicting defendant, after a jury trial, of robbery in the first degree and assault in the first degree, and sentencing him to concurrent terms of 2 to 6 years and IV2 to 4V2 years, unanimously dismissed.

Since defendant has been deported, he is not presently available to obey the mandate of the court in the event of an affirmance (see, People v Bacon, 46 NY2d 1073; People v Del Rio, 14 NY2d 165, cert denied 379 US 939). Accordingly, his appeal is dismissed. The enlarged record sufficiently establishes that defendant agreed to be deported. In any event, regardless of whether defendant was “voluntarily” or “involuntarily” deported, it is clear that he has become unavailable as a consequence of his voluntary misconduct, which consisted of remaining in the United States for four years on a three-month visa. Were we to decide the appeal, we would find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence, and that the prosecutor’s summation did not deprive defendant of a fair trial. Concur — Tom, J.P., Mazzarelli, Rosenberger, Wallach and Marlow, JJ.