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January 19, 2019

Risk of Deportation Mandates Jury Trial for Noncitizens, NY Court of Appeals Rules

By Michael H. Joseph

Our New York criminal defense attorneys who represent immigrants know how draconian a criminal conviction can be. Recent cases in New York  agree that the severity of this risk warrants a jury trial, rather than a judge who may lean towards the prosecution. The risk for deportation of a non-U.S. citizen accused of a low-level crime is enough to guarantee that individual have a trial by jury rather than a bench trial, the New York Court of Appeals stated in a decision on November 28, 2018.

The decision, over Sixth Amendment fair trial rights under the U.S. Constitution for persons facing deportation, was one of first impression for the Court of Appeals. It was brought before the court by Saylor Suazo, a non-citizen who was found guilty in a bench trial on various charges related to an alleged assault.

The Bronx District Attorney said she was considering taking an appeal on the decision to the U.S. Supreme Court since it was decided on federal constitutional grounds.  The key issue in the case was the gradation of the criminal charge Suazo had been tried upon.  A section of the state’s criminal procedure law, CPL 340.40, allows a defendant to be denied a trial by jury in New York City if the maximum penalty of a charge is less than six months in jail. The same rule does not apply outside New York City.

Suazo was initially charged with several crimes related to the alleged assault, the most serious being class A misdemeanor charges. The state’s penal law assigns a maximum penalty of one year in prison for that level of crime.  Prosecutors with the Bronx DA’s Office moved in open court to reduce those charges to class B misdemeanor crimes, which instead carry a maximum penalty of three months in jail. This happens all the time in New York City where prosecutors are afraid to put questionable cases in front of juries that are skeptical about the police and the fairness of the system. Prosecutors in New York City prefer Judges who often are former prosecutors and more accepting of police testimony.

The trial court granted that motion, which meant Suazo was able to be tried without a jury. Suazo then moved the judge to allow him a jury trial, arguing that the possibility of his deportation following a conviction would make his punishment serious enough to require a trial by jury under the U.S. Constitution’s Sixth Amendment. His motion was rejected and he was found guilty by the trial court.

The argument was sided on Suazo’s behalf stating that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty. Accordingly, it was held that a non-citizen defendant charged with a deport able crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.

It is good to know that the Court of Appeals have recognized that the devastating penalty of deportation makes a crime serious within the meaning of the Sixth Amendment.  However, the decision has been criticized by the Bronx District Attorney stating that her office is considering bringing the case before the U.S. Supreme Court, which would hold rank over the state’s highest court in matters of immigration law. But our immigration and deportation lawyers know that too many prosecutors care only about the conviction and not a just result.

It was also argued that decision creates ramifications, including serious backlogs and disparities in the administration of justice, for the courts of this state. Concerns were addressed over backlog and other issues in her opinion, saying that the burden will still be on the defendant to establish whether the consequence of their potential conviction would be enough to mandate a trial by jury. In situations where prosecutors and noncitizens disagree about the severity of an outcome, the court will be tasked with resolving that conflict.

There is now a split in terms of how the Sixth Amendment right to jury should be understood, opening the door to further litigation, in both state and federal courts, over exactly which collateral consequences may make an otherwise ‘petty’ offense ‘serious’. It is doubtful that importing federal immigration law into the penalty analysis was something the Supreme Court intended when it made the Sixth Amendment right to trial by jury for ‘serious’ offenses applicable to the states.

 
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