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.
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.
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.
- 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.