Over the last 20 years, the number of pre-trial hearings and post-conviction proceedings has grown in our criminal courts. At present, there are approximately 30 pre-trial hearings, some of which can lead to a disposition of the case without the necessity of a trial. Recently, a new hearing was mandated as a result of People v. Suazo, ___ N.Y.3d ___, 2018 N.Y. Slip Op 08056 (2018), in which the New York Court of Appeals held, in a 5-2 decision, that a noncitizen defendant charged with a deportable class B misdemeanor (maximum of three months in jail) is entitled to a jury trial under the Sixth Amendment, even though the maximum authorized sentence is a term of imprisonment of less than six months.
The Sixth Amendment provides that in all criminal prosecutions a defendant is entitled to a trial by jury. In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court applied the U.S. Constitution’s right to a jury trial to the states through the Fourteenth Amendment and held that, pursuant to the Sixth Amendment, a defendant accused of a “serious” crime (as opposed to a “petty” crime) is afforded the right to a trial by jury. Two years later, the court defined a “serious crime”, for purposes of the Sixth Amendment, as a crime for which the maximum period of incarceration is more than six months. Baldwin v. New York, 399 U.S. 66 (1970).
In Baldwin, the Supreme Court reversed the defendant’s conviction, holding that the then-New York statute (New York City Criminal Court Act §40) was in violation of the Sixth Amendment. The statute precluded a jury trial for any misdemeanor (even class A misdemeanors, punishable by one year in jail) and the court noted that New York was the only jurisdiction in the country, at that time, with a statutory scheme that precluded jury trials for a crime punishable by more than six months incarceration.
The following year, New York enacted the current statute—CPL §340.40(2)—that affords a jury trial to a defendant prosecuted outside New York City for any misdemeanor (class A or B). If the defendant is prosecuted in the New York City Criminal Court, however, the statute only affords a trial by jury if the authorized sentence of imprisonment for the misdemeanor is in excess of six months, i.e., a class A misdemeanor.
In the past, the New York Court of Appeals has not commented much about the statute, other than to observe that it “furthers the important public interest of effective judicial administration” when one considers the high volume of misdemeanor cases in the New York City Criminal Court. People v. Urbaez, 10 N.Y.3d 773 (2008). One commentator has noted, however, that in recent years, “the volume [in New York City Criminal Courts] has declined significantly for a number of reasons including the effect of the ‘raise the age’ law that has moved those under 17 (and on Oct. 1, 2019, those under 18) charged with a misdemeanor to the Family Court.” Donnino Practice Commentary to CPL §340.40. In 1968, there were approximately 9,000 misdemeanor trials in the New York City Criminal Court; in 2017, there were 675 misdemeanor trials.
In Suazo, the defendant was charged with a number of class A misdemeanors arising from an incident during which the defendant grabbed the mother of his children, threw her to the floor, placed his hands around her neck and obstructed her breathing and then struck her numerous times in the head and neck with his fist. He was later charged with criminal contempt because of his violation of an order of protection that directed him to have no contact with the victim.
Prior to trial, the People moved to reduce all the class A misdemeanors to attempt crimes, which constituted class B misdemeanors, punishable by a maximum of three months in jail. The court denied the defendant’s motion opposing the reduction, and denied a second motion asserting the defendant’s right to a jury trial because he was a noncitizen charged with class B misdemeanors that were deportable offenses. As such, the defendant argued that the class B misdemeanors were sufficiently serious to mandate a jury trial under the Sixth Amendment. After a bench trial, the defendant was convicted.
In reversing, the Court of Appeals noted that, despite the statutory preclusion of a jury trial for a class B misdemeanor in New York City, a defendant still has “the opportunity to establish that the crime charged is considered serious enough by society, based on penalties associated therewith, to entitle the defendant to a jury trial as guaranteed by the Sixth Amendment.” Suazo, at p. 6.
The court considered a number of factors in reaching its determination. First, the court viewed the penalty of deportation as one that rivals incarceration in many respects. It is a penalty of the utmost severity, frequently involving detention and the loss of liberty which may last years, eventually resulting in lifelong banishment from the country that one considers home.
While the court acknowledged that the penalty of deportation is a civil collateral consequence, it noted that the Supreme Court had held open the possibility that a collateral consequence could potentially render an otherwise “petty” offense to be a “serious” offense for the purposes of the Sixth Amendment. See Blanton v. North Las Vegas, 489 U.S. 538, 544 (1989).
The fact that the penalty of deportation is imposed as a matter of federal, rather than state, law was not fatal to the defendant’s claim. Significantly, it was a legislative body, i.e., Congress, that authorized an onerous penalty, i.e., deportation, to be attached to a state conviction, and the court concluded “that the Sixth Amendment mandates a jury trial in the ‘rare situation’ where a legislative body attaches a sufficiently, onerous penalty to an offense whether that penalty is imposed by the state or national Legislature.” Suazo, at p. 12.
In reaching its determination, the court was mindful of the fact that some “judicial efficiency” may be lost in requiring courts to determine the potential immigration consequences associated with pending charges. Thus, a defendant charged with a class B misdemeanor will have the burden to overcome the presumption that the crime charged is a “petty” one under the Sixth Amendment, and establish that the crime subjects the defendant to deportation thus rendering the crime a “serious” one for the purposes of the Sixth Amendment.
There will be a number of consequences as a result of Suazo. Initially, for the first time Criminal Court judges will be placed squarely in the middle of litigation involving a defendant’s immigration status and the potential immigration consequences associated with pending charges. Up to now, judges have only been involved marginally in this area of the law. For example, courts have only been required to inform a defendant pleading guilty to a felony charge that, if a noncitizen, the defendant may be deported as a result of the plea. People v. Peque, 22 N.Y.3d 168 (2013). In addition, a court must also ensure that defense counsel has advised a defendant about the deportation consequences of a criminal conviction. Padilla v. Kentucky, 559 U.S. 356 (2010). As a result of Suazo, however, courts will now be required to make specific findings as to the immigration consequences of specific class B misdemeanors. Currently, there are over 70 class B misdemeanors with potential immigration consequences, e.g., attempted assault, 3d degree; menacing, 3d degree; sexual abuse, 3d degree.
In addition, courts should also anticipate motions raising an equal protection challenge based upon Suazo, i.e., that it is a violation of the Equal Protection Clause to deny jury trials to citizens facing charges that would entitle non-citizens to a jury trial under the Sixth Amendment. See “Issues to Develop at Trial,” Center for Appellate Litigation, Vol. 3, Issue 7. Thus, a citizen charged with a class B misdemeanor that would have immigration consequences for a non-citizen, could argue that he or she is being denied the right to equal protection based on his citizenship status. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1983).
In People v. R.A., 2019 N.Y. Slip Op 29016 (Crim. Ct. New York County 2019), the defendant raised an equal protection argument but the court held that Suazo has no application to citizens of the United States.
Finally, a challenge based upon the State Constitution’s right to a jury trial would not seem to lie (Article 1, §2; Article VI, §18). Pursuant to Article 1, §2 of the State Constitution, an individual has the right to a jury trial which, under Article VI, §18, is afforded only to those individuals who have been indicted for felonies. That view was espoused by the Court of Appeals in Hogan v. Rosenberg, 24 N.Y.2d 207 (1969) which held that misdemeanors are not “serious’ crimes for purposes of the Sixth Amendment. Hogan was reversed sub. nom. in Baldwin, supra. Thus, it would seem that the state constitutional right to a jury trial improperly abridges the federal constitutional right to a jury trial and would be a dead letter. The Supreme Court has held that a state “may not impose such greater restrictions, as a mater of federal constitutional law, when this Court specifically refrains from imposing them.” Oregon v. Hass, 420 U.S. 714, 718 (1975).
Looking forward, there may be a simple solution to the concerns mentioned above. A bill has been introduced by State Senator Brad Hoylman that would provide for jury trials for defendants charged with class B misdemeanors in the New York City Criminal Court. (S. 9198).
In Padilla v. Kentucky, the Supreme Court recognized that “[t]he landscape of federal immigration law has changed dramatically over the last 90 years.” 559 U.S. 356, 360 (2010). As a result, the court addressed the collateral consequences of deportation and the importance of accurate legal advice for noncitizens accused of crimes. The New York Court of Appeals, in Suazo, has now taken the additional step of affording noncitizens the right to a jury trial when charged with a deportable class B misdemeanor, punishable by only a maximum of three months in jail.
Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2018); he is a former state Supreme Court judge.