Category Archives: Commentaries

Suazo: Where We Go From Here

Yesterday, the New York Court of Appeals held that, as a matter of federal constitutional law, a noncitizen has a right to a jury trial for a petty offense if he or she can show that the charged crime may result in deportation. The majority’s reasoning boils down to the following. A person has a right to a jury trial when he or she is facing a “serious crime,” which has mostly been measured by the potential length of the sentence; “seriousness” should also consider other types of consequences; and deportation or removal is one such type of serious consequence, thus requiring a jury trial on demand. In this post, I’ll analyze the Court’s decision and predict where we’re headed in this area.

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Appeal Waivers

I have a piece in tomorrow’s New York Journal arguing that waivers of the right to appeal serve a valid and important purpose in the criminal justice system.  Here is an excerpt:

The settlement of a case signifies the end—not the beginning or continuation—of litigation. This is true in both civil litigation and criminal cases. By pleading guilty, the accused is conceding that the People have the requisite proof beyond a reasonable doubt and that a trial is unnecessary. Typically, the relinquishment of trial-based rights is given in exchange for some benefit at sentencing. The parties have reached a mutual agreement, and the case should end.

Appellate litigation is not without costs. The indigent defendant is entitled to a court-appointed lawyer, the People must assign an assistant to write and argue a brief, and the intermediate appellate court must take the time to hear and decide the case. Doing all of this in the context of where the parties have come together to reach an agreement is a waste of resources for all sides and the court.

And so, it is no wonder that district attorneys and some judges insist on appeal waivers as part of guilty pleas. But the choice to accept or reject such a waiver always remains with the defendant, a point the Court of Appeals emphasized in People v. Seaberg, 74 N.Y.2d 1, 8-9 (1989), when it upheld the constitutionality of appeal waivers. People v. Batista, 2018 N.Y. Slip Op. 7445 (2d Dept. Nov. 7, 2018), reminds plea courts that they must not conflate appeal waivers with the litany of rights that a defendant gives up by pleading guilty.

Thus, it is immaterial whether such waivers are asked for “across-the-board”; an individual defendant is always free to reject it.

At a time when our courts—particularly our intermediate appellate courts—are stretched thin (see Andrew Denney, “NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges,” N.Y.L.J., Nov. 9, 2018 (noting the delays in the overburdened Second Department)), precious judicial resources should be reserved for those cases where there are meritorious arguments in live cases, not ones where the parties have concluded that litigation should end. If the defendant in a particular case disagrees, he or she should reject any plea offer that contains an appeal waiver, proceed to trial, and, if convicted, litigate an appeal, as is his or her constitutional right.

 

Some Further Thoughts on Tiger

Earlier today, Paul Tsenesidis posted about People v. Tiger, where the Court of Appeals held that a freestanding actual innocence claim without any further constitutional basis, such as IAC or Brady, could not be used to vacate a judgment that was obtained by guilty plea.

Professor Bonventre (Albany Law School) posted an analysis of Tiger on his blog shortly after it came out. I agree with much of what he wrote but disagree with this portion of his post:

It’s not that the statute in question (CPL 440.10) actually says that. Or that the statute cannot be interpreted to allow an actual innocence challenge. No, the majority chose to adopt that interpretation. … So why did the Court choose to reject the availability of an actual innocence challenge? Strangely–and this is cause for at least as much concern as the Court’s decision itself–the majority relied in large measure on Supreme Court precedents.

I read Tiger differently.  I saw it as a statutory interpretation case, not a constitutional one.  Most of the majority’s analysis was focused on the statutes, particularly the differences in plain language between 440.10(1)(h), (1)(g), and (1)(g-1), which together showed that the Legislature had a clear purpose in treating judgments obtained by guilty plea versus trial verdict differently. (Still, the majority’s argument would have been stronger if it had expressly come out to say that its decision was on constraint of the statute and that the Legislature was free to provide relief in these types of situations if it so chooses.)

That said, Professor Bonventre’s point is that the statute does provide relief: CPL § 440.10(1)(h), which states that judgments obtained in violation of constitutional rights are subject to vacatur.  The argument is that the state Constitution provides for such a basis. Thus, citation to federal cases is inapposite.  The New York Court of Appeals has a long tradition of interpreting the New York Constitution as going further than its federal counterpart.  Yet the majority does not engage with those cases or principles.  (On the other hand, most of those cases are in the search/seizure and right to counsel areas, which do not have bearing on a procedural issue.)  If I read Professor Bonventre’s post correctly, he is arguing that the state constitutional issue is properly before the Court—and needed to be addressed—via CPL § 440.10(1)(h).

Still, I come back to the plain language of the statute.  CPL § 440.10(1)(h) permits vacatur if the judgment was obtained in violation of a defendant’s state or federal constitutional right.  The key word in the statute is “obtained.”  In an actual innocence case, the judgment was not “obtained” by some unconstitutional practice. It was obtained by the defendant’s consent to entry of judgment. After all, a person who maintains his or her innocence is allowed to enter into a contractual bargain with the State for a reduced sentence.  See North Carolina v. Alford, 400 U.S. 25 (1970).  Again, to Professor Bonventre’s point, Alford is a federal case, but the principle in Alford has been upheld in New York courts as well. See, e.g.People v. Couser, 28 N.Y.3d 368 (2017). So in a roundabout way, perhaps the Tiger majority did engage state constitutional law in its analysis.

And maybe this is to say that there isn’t much daylight between Professor Bonventre’s position and mine after all.

At the end of the day, the ball is now in the Legislature’s court.  I wonder what the odds are of the Legislature taking up such a meaty criminal justice issue?  (LC)

Gay/Trans Panic Defense

Eric Lesh, the executive director of LeGaL, the LGBT Bar Association of New York, and James Castle, of Cozen O’Connor, have an article in today’s New York Law Journal calling on the Legislature to pass proposed legislation to outlaw the “gay and trans ‘panic defense,” which they summarize as, “a blame-shifting strategy upon which those accused of LGBT murder think they can rely in order to rally the anti-LGBT biases of judges and juries and mitigate their perceived culpability.”  Essentially, the accused uses the sexual orientation or gender identity of the victim as a “reasonable explanation or excuse” to establish extreme emotional disturbance, dropping a Murder charge down to Manslaughter.

Lesh and Castle argue: Continue reading

Reversal for right to public trial violation

In a very brief opinion, the First Department reversed the conviction in People v. Gray (1st Dept. 8/18/2011) because the trial court ordered the complete closure of the courtroom during the undercover's testimony.  The Defendant requested that certain family members be allowed to stay, but the court summarily rejected the request without comment.  Of particular concern to the First Department was that "the record does not otherwise show that the court considered whether there existed any reasonable accommodations that would have protected the public nature of the criminal proceedings."  The court reiterated that "trial courts are required to consider alternatives to closure even when they are not offered by the parties."  

The lesson for trial courts and for prosecutors is to make a proper record that explicitly considers alternatives to complete closure.  (LC)