By Ali Najmi
On Nov 27, 2018, the New York State Court of Appeals ruled in the case of People v. Suazo (2018 NY Slip Op 08056), in which it declared that collateral immigration consequences — such as deportation — constitute a serious enough punishment to justify a jury trial for a B-Misdemeanor crime in New York City.
“The Sixth Amendment of the United States Constitution guarantees that a defendant will be judged by a jury of peers if charged with a serious crime. Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation — i.e. removal from the country — is entitled to a jury trial under the Sixth Amendment.” – People v. Suazo.
The current law in New York State, Criminal Procedure Law §340.40(2), states that defendants charged with crimes constituting a B-Misdemeanor (only punishable up to 90 days of imprisonment) within the City of New York are not entitled to jury trials. However, defendants in counties outside of the City of New York such as Long Island or upstate are entitled to jury trials.
District Attorneys will often move to reduce their weakest A-Misdemeanor cases into B-Misdemeanor attempt charges in order to deny a defendant the opportunity to have his or her case heard by a jury. This is a sneaky and underhanded move as convictions are more likely in a judicial bench trial than a jury trial. Very weak Assault in the 3rd Degree cases will be reduced to Attempted Assault in the 3rd Degree or Attempted Criminal Obstruction of Breathing.
The decision is Suazo does not limit the right of a trial by jury in B-Misdemeanors to those facing immigration consequences. The court stated:
“A defendant is entitled to a jury trial…only if [the defendant] can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.” – People v. Suazo.
Therefore, defendants in New York City facing a B-Misdemeanor charge have the burden to demonstrate that the consequences they face are so serious they justify a jury trial. This leaves opportunity for tremendous amounts of litigation to test the boundaries of the Suazo decision.
Some alternative scenarios may present a similarly compelling exception, for example would a full order of protection lasting two years between two individuals, especially a parent and child, thereby effectively terminating that relationship, constitute a serious enough punishment to justify a jury trial? Does a consequence of a conviction to a professional license constitute a serious enough punishment to justify a jury trial?
The courts will be dealing with such issues brought on by experienced New York criminal defense attorneys..
The Suazo decision raises other questions.
For example, does it make sense to allow non-citizens to have a right to jury trial in circumstances where a citizen of the United States would not? Does the geographic discrimination of CPL 340.40(2) make sense?
Compelling arguments under the equal protection clause of the 14th Amendment or Article 1, §11 of the State Constitution in light of the Suazo decision are strong legal arguments to be tested in litigation.