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An undocumented immigrant in New York City was denied the right to a jury trial this week, despite a landmark New York Court of Appeals decision on the issue, after a judge from Queens said his motion to do so was made too far along in the litigation.

Fredy Lopez, the defendant in the case, had asked the judge in the middle of his bench trial for a jury trial after a decision from the state’s highest court said undocumented immigrants should be offered a jury trial if they’re at risk of being deported following a conviction.

The decision, People v. Suazo, was handed down in November by the Court of Appeals one day before Lopez’s trial was expected to end. Queens Criminal Court Justice Jerry Iannece wrote that, because Lopez had not asked for a jury trial before his bench trial started, the Suazo decision did not grant him the same opportunity as other defendants.

“While the court acknowledges that Suazo was decided prior to the conclusion of this trial, this did not preclude the defendant from raising a Sixth Amendment claim for a jury trial at the outset of the trial and/or any time prior thereto,” Iannece wrote. “The defendant did not move for a jury trial on any grounds until after the trial had started and jeopardy clearly attached.”

Lopez was attempting to use Suazo to overcome a section of state law that actually prohibits jury trials in New York City when a defendant is charged with a low-level misdemeanor. Lopez was charged was public lewdness and exposure of a person and faces a maximum sentence of six months in jail.

A section of the state criminal procedure law blocks jury trials in New York City when the charge carries a sentence of six months or less. That law does not apply outside New York City, where a jury trial can be requested for charges of any level.

The decision in Suazo essentially said that if a defendant in New York City was at risk of being deported as a result of their conviction, the seriousness of that penalty mandates the option for a trial by jury under the Sixth Amendment of the U.S. Constitution.

The landmark ruling did not require judges to automatically grant immigrants a jury trial. It, instead, said the burden is on defendants to show they would be at risk of deportation upon a conviction. If the immigrant is able to meet that burden, the judge should grant them a jury trial, according to the ruling.

Iannece wrote in his decision that, aside from being untimely, Lopez had not made the case that his conviction from the bench trial would cause him to be deported.

“Although the defendant states that he is a noncitizen and that the offense is a crime of moral turpitude, he does not claim that a conviction would make him deportable,” Iannece wrote.

Rather than evaluating the motion as one for a jury trial, Iannece viewed it as a request for a mistrial since the proceeding would have had to be terminated and recycled. Looking at it that way, Iannece wrote that a mistrial wasn’t warranted at that point in the bench trial.

“The court finds that declaring a mistrial at this stage in the proceedings so that the defendant may be retried by a jury would be improper,” Iannece wrote. “Significantly, the defendant does not claim that he was prejudiced and deprived of a fair trial in any way.”

Lopez was represented by Nicholas Justiz, a staff attorney at Queens Law Associates. Justiz did not return a call for comment on the decision.

The Queens District Attorney’s Office, which prosecuted Lopez and argued against his motion for a jury trial, also did not immediately respond to a request for comment.

The decision comes as state lawmakers in New York consider altering the section of state law that prohibits jury trials for low-level misdemeanors in New York City. A bill by state Sen. Brad Hoylman, D-Manhattan, and Assemblyman Joseph Lentol, D-Brooklyn, would eliminate that part of the law. That would give defendants in New York City the same jury trial guarantee as individuals charged in the rest of the state.

Officials within the state judiciary are opposed to the bill, which lawmakers could send to the floor for a vote at any time in either chamber. A spokesman for the Office of Court Administration said earlier this month the legislation could add to the current backlog of criminal cases in New York City courts.

“Although this is a well-intentioned proposal, it will make it markedly more difficult to resolve cases in a timely manner in high-volume misdemeanor courts like New York City Criminal Court,” said Lucian Chalfen, an OCA spokesman.

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