Category Archives: Constitutional Law

State and Local Law Enforcement Prohibited from Making Civil Immigration Arrests

In People ex rel. Wells o/b/o Susai Francis v. DeMarco (2d Dept. 11/14/2018), the Second Department unanimously held that New York state and local law enforcement officers are not authorized under New York law to make arrests for civil immigration violations.

The factual background is somewhat complicated. The petitioner, Susai Francis, is an Indian citizen. He entered the United States via New York City in 1996 on a B2 visitor visa, which allowed him to remain in the United States for a period not to exceed six months. Francis did not leave the United States when the visa expired. Instead, he has remained on Long Island for more than two decades and has two children, one of whom is a citizen of the United States. On March 25, 2015, Francis was served with a notice to appear in Immigration Court, and he is currently the subject of removal proceedings.

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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.

Background

First, some background about the jury trial right under the U.S. Constitution and New York law.  Under the Sixth Amendment, there is a right to a jury trial for “serious” offenses but not for “petty” ones.  One bright-line rule in this regard is that if the potential punishment is six months or greater, the offense is “serious.”  However, the Supreme Court has also clarified that offenses that carry a maximum punishment of less than six months may still be “serious” (and carry a right to a jury trial) if other punishment render it so.  

In New York, CPL § 340.40 provides greater protections to defendants than under the Sixth Amendment.  In counties other than the five boroughs of New York City, there is a jury trial right for all misdemeanors, regardless of potential punishment.  However, under § 340.40(2), prosecutions in New York City of misdemeanors carrying potential punishments of six months or less—such as the one of Mr. Suazo—are tried to a judge only.  (One note: Class A misdemeanors carry a maximum punishment of one year in jail, and Class B misdemeanors carry a maximum punishment of three months in jail.  However, it is incorrect to read CPL § 340.40(2)’s bench trial trial rule as being limited to Class B misdemeanors only.  There are a handful of unclassified misdemeanors sprinkled throughout the law that carry punishments of between three and six months [see Penal Law § 55.10].) 

Suazo: The Facts

Saylor Suazo was charged with a number of domestic violence-related misdemeanors.  He was later accused of violating an order of protection that grew out of the earlier prosecution. The offenses occurred in The Bronx. Immediately before trial, the People moved to reduce the Class A misdemeanor charges to attempts, rendering them Class B charges, punishable by a maximum of three months in jail.  Under New York law, the case proceeded to trial without a jury. 

Suazo: The Holding

In addressing whether deportation or removal is an “additional penalty beyond incarceration” that elevates otherwise “petty” misdemeanors to “serious” offenses, the Court of Appeals concluded, “There can be no serious dispute that, if deemed a penalty for Sixth Amendment purposes, deportation or removal is a penalty of the utmost severity.”

The Court based this conclusion on the fact that deportation proceedings often involve pre-adjudication detention, which then leads to “lifelong banishment or exile” from the United States, a country that a person may consider home, and that deportation is often triggered under federal law by some state criminal conviction.  The Court rejected the People’s arguments that deportation is a civil, collateral consequence, not a penalty.  The Court relied principally on the Supreme Court’s decision in Padilla v. Kentucky, which held that defense attorneys must advise noncitizen defendants of the immigration consequences of guilty pleas.  And given the large increase in immigration enforcement proceedings since 1996, there is a ready “connection” between state criminal convictions and deportation.  The majority also noted that the Supreme Court has never held that collateral consequences cannot be considered as a factor in the Sixth Amendment jury trial right analysis. 

Returning to the facts, the Court held that at least one of the charges—Criminal Obstruction of Breathing or Blood Circulation (Penal Law § 121.11)—qualified as a deportable offense and, therefore, the defendant was entitled to a jury trial.

Suazo: The Dissents

There were two dissents.  Judge Garcia wrote that the Sixth Amendment jury trial right analysis should focus solely on the penalties imposed by the New York legislature for the specific offense at issue.  He called upon the Supreme Court to weigh in to settle the issue.  Judge Wilson dissented on the grounds that deportation has never been considered to be a criminal penalty.  Indeed, deportation proceedings themselves do not come with the right to a jury trial.  They are, instead, administrative proceedings.  He also noted that “the problems underlying this issue would vanish” if the Legislature were to amend CPL § 340.40(2) to remove the New York City exception.

Analysis

The dissents have the better argument here.  Courts have historically looked to the punishments imposed by the state legislature to determine if an offense is petty or serious.  Certainly one can imagine a situation where the jail penalty is low but some additional penalty (lifelong probation?) might elevate an offense to seriousness.  But the focus is always on the definition from the Legislature that applies to all persons accused of the crime.  The majority’s decision sets up a situation where certain defendants have greater constitutional rights than others who are charged with the same crime, all based on consequences imposed by another sovereign, the federal government.  

My fundamental disagreement with the Court is the following sentence: “There can be no serious dispute that, if deemed a penalty for Sixth Amendment purposes, deportation or removal is a penalty of the utmost severity.”  I do dispute the Court’s use of the term “penalty.”  Immigration proceedings are civil, not criminal, and what they impose—deportation or removal—is not a “penalty.”  If it were, there would be a right to a jury trial in deportation proceedings, which would have to be held before Article III judges, not employees of the Justice Department, a point made by Judge Wilson.

There are also some significant issues that will need to be sorted out in the future, such as the Equal Protection argument I raise below. 

Implications

  • This decision only impacts prosecutions in New York City.  Under CPL § 340.40, trials of all misdemeanors outside of the five boroughs must occur with a jury, unless waived by the defendant.
  • In addition, this decision only impacts those misdemeanors carrying the possibility of deportation.  However, federal immigration law is less than clear in some respects. However, the majority notes, “it is the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial … . In the event the parties disagree as to the potential immigration consequences of a conviction, we are confident that our courts are competent to resolve such questions as they are presented.”
  • This decision may very well be bad news for many noncitizen defendants.  Now, after this decision, prosecutors will no longer have an incentive to amend accusatory instruments to drop the top charges to Class B misdemeanors. Noncitizens may now find themselves facing the original, Class A misdemeanors.  If convicted, they could end up serving more time in jail.  
  • Although I have no inside information, I suspect that the Bronx District Attorney will seek certiorari from the Supreme Court of the United States.  It would not surprise me if the petition was granted, since this case raises an interesting issue of federal law, and at least one other high court (the D.C. Court of Appeals) has reached the same holding as the New York Court of Appeals.  On the other hand, these decisions could be considered outliers, and the Court may very well chose not to take up the case and instead allow the issue to be litigated in other courts.  The Supreme Court is not a court for the correction of error, after all.
  • The defendant in this case only preserved a claim under the Sixth Amendment.  In the event the U.S. Supreme Court reverses, I fully expect that this issue will again be litigated under the New York Constitution, which is far more generous on civil liberties issues than its federal counterpart. 
  • I wonder if we should now expect citizen-defendants to bring Equal Protection Clause challenges to CPL § 340.40(2)’s New York City carve-out, arguing that Suazo impermissibly provides greater rights to noncitizens such that Suazo should simply be extended to all defendants.  Maybe there’s even a Privileges and Immunities Clause argument to be made?  (I have not done enough research in either doctrine to be able to opine one way or another — I just raise this as a potential issue for future litigation.)  In the text accompanying footnote 8, the Court leaves for another day “whether a citizen would likewise be entitled to a jury trial when charged with an otherwise deportable offense.”
  • The usual caveats about landmark decisions apply.  First, it applies only to cases in the direct appeal pipeline. Second, defendants who wish to take advantage of this ruling on appeal must have preserved the claim in the lower court; otherwise, they will have to rely on the Appellate Division’s interest-of-justice authority, and they will be out of luck when they get to the Court of Appeals, which can only hear questions of law (although query whether this is a mode of proceedings error). Third, the courts will have to wrestle with whether to make Suozo retroactive.  And, finally, this decision is going to be of little help to petitioners in federal habeas actions, given AEDPA deference.

Officer’s Intent Irrelevant When Determining Whether Defendant Was Subject to Custodial Interrogation

In People v. Thomas (3d Dept. 11/9/2018), the Third Department held that the defendant was not subjected to custodial interrogation, even though a police officer testified that he would not have allowed the defendant to leave after he had entered the defendant’s residence.

The police responded to the defendant’s residence following a 911 call reporting a shooting. Defendant was initially asked to back up into the kitchen. The police explained that they simply wanted to be able to enter the residence safely and check the premises. A police officer then interviewed the defendant, his girlfriend, and two roommates together in the kitchen of the residence. The defendant was never handcuffed or otherwise restrained, and the defendant was free to move around the kitchen during the interview. However, a police officer testified that he would not have allowed the defendant to leave after he entered the residence. In other words, the defendant was not free to leave, but the officer never communicated that fact to the defendant.

The Third Department held that the officer’s subjective intent is irrelevant when determining whether or not a suspect was in custody at a particular time, where the officer’s subjective intent is not communicated to the suspect.  Instead, the proper inquiry is “what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position.” The Court concluded, on the facts in the record, that a reasonable person would not have believed that he or she was in custody. Because he was not in custody during the questioning in his kitchen, the police were not required to give him Miranda warnings.

Further, the post-Miranda statements the defendant made at the police station cannot be considered “the fruit of the poisonous tree” because the initial statements were not the product of pre-Miranda custodial interrogation. The Court thus rejected the defendant’s claim that defense counsel was ineffective for failing to raise that ground for suppression of his post-Miranda statements. (BJD)

Searching Cell Phones: Confirmation to get the Warrant

In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone. Continue reading

Speedy Proceedings Leading to Involuntary Plea Deals?

It is well established that trial courts have the responsibility of ensuring that a defendant who pleads guilty is doing so knowingly, voluntarily, and making an intelligent choice among alternative courses of action. However, this does not require courts, at the time of the defendant’s guilty plea, to ask defendants an established set of questions to ensure that the guilty plea is entered into knowingly and voluntarily. In People v. Cappiello (App. Term 2d Dept. 2018) the Appellate Term, Second Department, upheld the defendant’s guilty plea as having been entered into knowingly, voluntarily, and intelligently and that the defendant understood the consequences of her plea.

During the defendant’s arraignment, the prosecutor made the court aware that there was a plea agreement in place in which the defendant would plead guilty to one count of Petit Larceny (Penal Law § 155.25) and would serve a 20 day sentence. In response, defense counsel stated that he had spoken with the defendant, and after advising her of her rights and the offer from the D.A., she had advised him to enter a plea of guilty with the understanding that she would only serve 20 days in jail. Defense counsel then waived a formal allocution.

This case drew a dissent from Judge Weston in which he voted to reverse the judgment of conviction, vacate the defendant’s guilty plea, and dismiss the accusatory instrument in the interest of justice. Quoting the arraignment transcript, Judge Weston took issue with the lack of dialogue between the court and the defendant when she was entering her guilty plea. Unlike other cases where a judge may ask the defendant a series of questions regarding the guilty plea, here, the defendant had no interaction with the court. As Judge Weston pointed out, the only proof that defendant waived her rights was her counsel’s general statement that he had “advis[ed] her of her rights,” which was not made in response to any court inquiry. This lack of on the record evidence calls into question whether or not the defendant truly knew the consequences of her guilty plea.

While Judge Weston understood the policy behind judges needing to keep arraignments moving quickly in the interest of judicial economy, he stated that a court still has the responsibility to ensure that a defendant enters a voluntary and knowing guilty plea.  (MK/LC)